Is The Ontario Government Ensuring That No Tax Dollars Are Used To Create Barriers Against People With Disabilities?

July 8, 2009

SUMMARY

Every year, the Ontario Government spends billions of public dollars on capital projects, including new infrastructure, and on goods and services that it buys for use by the Ontario Public Service and by the public. Think how much it could help to making Ontario barrier-free for persons with disabilities if the Government made sure that that money was never used to create or perpetuate barriers against persons with disabilities!

The AODA Alliance has raised this with the Ontario Government as a priority issue in our campaign for a fully-accessible Ontario. Early in June 2009, an AODA Alliance delegation met with a group of senior Ontario Government officials. The key points covered in this meeting are set out in a June 25, 2009 letter from AODA Alliance Chair David Lepofsky to that Ontario Government delegation, set out below. This meeting was very helpful and constructive.

In summary, the Government now has in place no comprehensive, monitored policy and process for ensuring that Ontario taxpayer dollars are not used to create or perpetuate barriers against persons with disabilities. We have offered a constructive proposal on how to address this. We will keep you posted on what we hear back.

As always, we welcome your feedback. Write to us at: aodafeedback@rogers.com

*****

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
1929 Bayview Avenue,
Toronto, Ontario M4G 3E8
(Fax) 416-480-7014

June 25, 2009

via facsimile: (416) 325-8851
and via email: bill.hughes@ontario.ca

Mr. Bill Hughes, Assistant Deputy Minister
Infrastructure Policy And Planning Division
Ministry of Energy and Infrastructure
Frost Building South, 6th Floor
7 Queen’s Park Crescent
Toronto, Ontario M7A 1Y7

via facsimile: (416) 325-1488
and via email: ellen.waxman@ontario.ca

Ellen Waxman, Assistant Deputy Minister
Accessibility Directorate Of Ontario
Ministry of Community and Social Services
Suite 601, 6th Floor
777 Bay Street
Toronto, Ontario M7A 2J4

Dear Mr. Hughes and Ms. Waxman,

Re: Ensuring Ontario Infrastructure Funding Promotes Disability Accessibility

Thank you very much for arranging, at our request, for a delegation from the AODA Alliance to meet on June 11, 2009 with you and your colleagues: Kerry Pond, Assistant Deputy Minister, Accessible Public Service – Accessibility (Ministry of Government Services); Mary Shenstone, Assistant Deputy Minister – Strategic Real Estate Asset Management (Ministry of Energy and Infrastructure); Doug DeRabbie, Director – Office of the President and Chief Executive Officer (Infrastructure Ontario); Bill Ralph, Senior Vice-President & Chief Financial Officer – Infrastructure Lending (Infrastructure Ontario); and Heather Henderson, Accessibility Planner

(Ontario Realty Corporation).

We welcomed this opportunity to discuss the steps the Ontario Government is taking to ensure that Ontario’s massive infrastructure and procurement spending is used in a way that promotes and increases accessibility in Ontario for persons with disabilities, and is never used to create new barriers impeding Ontarians with disabilities. In this letter we summarize key points from our meeting. We also add some further information, having had the benefit of time to reflect on what we learned from you and your colleagues.

Our Proposal

Every year, Ontario spends billions of dollars on infrastructure initiatives and other capital programs. It also spends substantial sums each year on the procurement of goods and services for use by the Ontario Government and the public.

The Accessibility for Ontarians with Disabilities Act requires Ontario to become fully accessible for persons with disabilities by 2025. To help achieve this goal, the Ontario Government needs to take important new steps to ensure that when it provides capital grants and loans to the private sector or broader public sector, or when the Government spends public money to procure goods and services for use by the Ontario Public Service or the public, these funds will be optimally used to expand disability accessibility, and that no public money is used to create new barriers against persons with disabilities.

We do not here propose that Ontario increase its spending on infrastructure or procurement. For this proposal, we assume that the Government has decided how much it will spend on infrastructure and procurement for a given year. Our proposal addresses the criteria by which the Government will choose to spend those funds, and specifically how it will decide between different competitors for those funds.

We propose that when an organization from the broader public sector or the private sector applies to the Government for a capital grant or loan, such as for an infrastructure project, the applicant should have to show in their application how the funds will be used to improve accessibility for persons with disabilities. Their application should also show what steps they will take to ensure that no public funds are used to create any new barriers against persons with disabilities, or to perpetuate existing ones. Similarly, when suppliers bid to provide goods and services to the Ontario Government, the suppliers should have to show that these goods and services will be fully accessible to and usable by persons with disabilities. In deciding between competing applications or bids, a preference should be given to those applications which best promote accessibility and least perpetuate inaccessibility.

This would create an additional incentive for applicants for these funds to do better on the accessibility front. For example, if a university applies for funding to renovate or expand the upper floors of a building, and if there is no accessible entrance to that building or no accessible means to reach the floors to be renovated, that should substantially weigh against that application. In that case, the Government should give preference to giving that capital grant instead to a university that proposes to use the funds on a facility that is accessible, or that will become accessible through the grant.

We recognize that there must be flexibility in how this works. Some infrastructure projects are very important, and well-deserving of public funding, but may not significantly contribute to accessibility. If a major highway or bridge is in substantial disrepair and needs significant work, we recognize that this can be a priority for the Ontario Government even though, apart from sidewalk width and curb-cuts, there is little that can be done to advance disability accessibility through such projects.

To promote accountability on the part of recipients of Ontario Government capital funding, we proposed that applicants for such grants (and loans, where feasible) should be required to post on their public website their intended steps on accessibility, and their planned use for the infrastructure funds. This would enable members of the public, including Ontarians with disabilities, to monitor these expenditures and offer the Government feedback on whether the goal of accessibility is being effectively advanced.

Under our proposal, it would not be sufficient for an applicant for capital funding, or for an organization bidding on a procurement opportunity, to merely note in their application that they will comply with existing legislation on accessibility, such as the Ontarians with Disabilities Act 2001 or the Accessibility for Ontarians with Disabilities Act 2005. Those laws do not impose comprehensive accessibility standards at this point that would ensure that public funds are not used to create new barriers against persons with disabilities. We don’t just want applicants for Government funding to put boilerplate language into their bids or applications. We want to change how public funds are actually used. We want public funding to be used as an incentive to spur more activity toward the goal of accessibility in the private sector and broader public sector.

Our proposal requires no major new Government spending. It addresses how the Government will choose between competing applicants for existing funds. As it is, the Government vets applications for grants to decide to which competitors it will award public funds. We simply propose a modification of the criteria to be used to judge the merits of capital funding applications and procurement bids.

It would be very beneficial for the Government to make it widely known to the public, including prospective applicants for these grants or bidders for procurement contracts, that the Government will gauge the accessibility impact of competing applications for these public funding opportunities. This can include public statements by cabinet ministers or the Premier. This necessitates no public spending on commercial advertising. Giving this message good profile would advance the Government’s public commitment to the goals of the Accessibility for Ontarians with Disabilities Act. It would show that the Government is backing this commitment with concrete action. We believe this initiative is especially important during these tough economic times. This is when the Ontario Government is most likely to expand its infrastructure stimulus spending.

What We Learned At Our Meeting

At our June 11, 2009 meeting, we learned that the Ontario Government now has no such comprehensive program. In advance of the meeting, we had asked for copies of any Government policies or standards requiring the incorporation of accessibility in capital or other infrastructure grants or procurement bids. We were given none. We took it from that that none now exist. Anything happening within the Government on this score is ad hoc.

We also learned at our meeting that the Ministry of Energy and Infrastructure mainly leaves it to the front-line ministries that give out infrastructure capital grants to address disability accessibility. We were told that those ministries will require recipients to comply with existing legislation such as the Ontario Building Code, and any standards enacted under the Accessibility for Ontarians with Disabilities Act. We took it from this that there is no common, consistent approach mandated and monitored across the Government. This is instead left to the ad hoc discretion of each ministry that gives out public capital funds such as infrastructure money, e.g. the Ministry of Health, the Ministry of Transportation, the Ministry of Education or the Ministry of Training, Colleges and Universities. With no centralized, consistent approach to this in the Ontario Government, there is no way to know whether the Government is using its spending power to the best effect as an incentive to promote accessibility.

We noted at the meeting that section 9 of the Ontarians with Disabilities Act 2001 (which is still in force) authorizes the Government to make disability accessibility a criterion in allocating capital grants. It provides:

Government-funded capital programs

9. (1) If a project relates to an existing or proposed building, structure or premises for which the Building Code Act, 1992 and the regulations made under it establish a level of accessibility for persons with disabilities, the project shall meet or exceed that level in order to be eligible to receive funding under a government-funded capital program.

Same, other projects

(2) If a project is not a project described in subsection (1) or if the projects in a class of projects are not projects described in that subsection, the Government of Ontario may include requirements to provide accessibility for persons with disabilities as part of the eligibility criteria for the project or the class of projects, as the case may be, to receive funding under a government-funded capital program. S.O. 2001, c. 32, s. 9, in force September 30, 2002 (O. Gaz. 2002, p. 898- 899).

We might add here that the Ontarians with Disabilities Act 2001 also addresses requirements for accessibility when the Ontario Government spends public funds on the procurement of goods and services. It provides:

Government goods and services

5. In deciding to purchase goods or services through the procurement process for the use of itself, its employees or the public, the Government of Ontario shall have regard to the accessibility for persons with disabilities to the goods or services.

The Ontario Human Rights Code sets accessibility requirements well above those which the Ontario Building Code requires. The Ontario Human Rights Commission’s submissions to the Ontario Government on the need to harmonize the Building Code with the Human Rights Code (the latter of which has primacy in case of any conflict between them) is available at:

http://www.ohrc.on.ca/en/resources/submissions/SubmBldngCode2

As such, if various ministries are expected to ensure that grant recipients comply with Ontario legislation on accessibility, they need to ensure that this includes the higher requirements of the Human Rights Code, not just the lower requirements of the Building Code.

Next Steps

We appreciate your agreeing to take our proposal to the Ministry of Energy and Infrastructure, and to consider how it might be addressed through the Government’s annual Results-Based Planning process. You explained to us that that is where annual infrastructure spending is designed for the next budget year. You reflected on the possibility that this might be added to the planning process for the 2011-2012 fiscal year.

This would be a constructive step toward making significant progress in this area. We welcomed your agreeing to take back our ideas, to discuss them with us further, and for Ms. Waxman and Mr. Hughes to serve as our lead contact persons.

It is important to follow up on this issue promptly, since the clock is ticking toward the end-date of full accessibility by 2025 as Ontario law requires.

We propose these next steps:

1. It would be helpful if you could arrange a follow-up meeting for us as soon as possible that also includes key representatives from the front-line ministries that choose recipients of infrastructure funding, such as those ministries listed above. It would be helpful to learn from them what accessibility steps they now take in connection with capital and procurement spending, and to get their input on the proposal we have tabled with you.

2. We regret to have learned at our June 11, 2009 meeting that the major stimulus spending, announced in the recent Ontario Budget, has already largely been allocated. We had hoped that this substantial stimulus spending would give an especially good chance to make progress on accessibility during these difficult economic times. From what you have told us, that opportunity has now been lost.

We want to ask you to explore what steps can be undertaken to immediately incorporate new accessibility measures, for capital spending still unallocated under the stimulus package, and for upcoming initiatives before the 2011-2012 fiscal year. It is important not to miss any more opportunities. We recognize that interim measures may not be as fulsome as ones that you may later incorporate into the 2011-2012 Results-Based Planning initiatives.

3. We do not believe that it is necessary to await the enactment of the new Built Environment Accessibility Standard currently under development at the Ministry of Community and Social Services. That accessibility standard may not be finalized and enacted until some time next year.

The law already requires the removal and prevention of barriers to accessibility, and requires the Government to take the needs of persons with disabilities into account when designing and operating Government programs, whether or not details on how to do this have already been spelled out in existing accessibility standards. This includes those the Government delivers itself, and those it delivers through private parties.

Within the next few weeks it is expected that an initial draft of the Built Environment Accessibility Standard will be circulated for public input. In the interim, it would be sufficient to let applicants for grants, loans and procurement opportunities know that the Government will be looking for measures which are along the lines of those in the initial proposal of that accessibility standard (as well as the other accessibility standards now under development), even though there will be room for flexibility before that accessibility standard is finalized and enacted.

4. It would be beneficial for you to research what policies are used in other jurisdictions such as the U.S. Government’s longstanding contract compliance programs.

We propose to bring our ideas on this issue to members of the Government caucus. We want to give you a good opportunity, as public servants working in this field, to take a look at this issue in advance, to raise any questions with us that you wish, and to formulate possible options, to assist the elected officials whom we will ask to act on our proposal.

We look forward to hearing from you, and to following up on this initiative.

Sincerely,

David Lepofsky, CM, O.Ont.
Chair, AODA Alliance

cc: Kerry Pond, fax: (416) 326-8461, email: kerry.pond@ontario.ca
Mary Shenstone, fax: (416) 325-4920, email: mary.shenstone@ontario.ca
Doug DeRabbie, fax: (416) 325-4646, email: doug.derabbie@infrastructureontario.ca
Bill Ralph, fax: (416) 325-4646, email bill.ralph@infrastructureontario.ca
Heather Henderson, fax (416) 212-1121, email heather.henderson@ontariorealty.ca
Hon. Madeleine Meilleur, Minister, Community & Social Services, fax (416) 325-2498,
email madeleine.meilleur@ontario.ca
Lucille Roch, Deputy Minister, Community & Social Services, fax (416) 325-5240, email lucille.roch@ontario.ca
Hon. Dwight Duncan, Minister, Finance, fax (416) 325-0374, email dduncan.mpp.co@liberal.ila.org
Hon. Shelly Jamieson, Secretary of Cabinet, fax (416) 314-8980, email
shelly.jamieson@ontario.ca
Hon. Dalton McGuinty, Premier, fax (416) 325-7578, email
dmcguinty.mpp.co@liberal.ola.org
Hon. George Smitherman, Minister, Energy & Infrastructure, fax (416) 327-6754, email
gsmitherman.mpp.co@liberal.ola.org
Saad Rafi, Deputy Minister, Energy & Infrastructure, fax (416) 327-6755, email
saäd.rafi@ontario.ca
Susanna Zagar, Associate Deputy Minister- Infrastructure, Energy & Infrastructure, fax
(416) 212-3786, email susanna.zagar@ontario.ca
Hon. Ted McMeekin, Minister, Government Services, fax (416) 327-3790, email
tmcmeekin.mpp.co@liberal.ola.org
Ron McKerlie, Deputy Minister, Government Services, fax (416) 325-1612, email
ron.mckerlie@ontario.ca