Disability activists seek private enforcement
Advocates unhappy with government’s lack of action on accessibility
After five years of lax enforcement of Ontario’s groundbreaking accessibility legislation, disability activists want Queen’s Park to hand over enforcement responsibilities to an independent public agency.
The call comes in the wake of a new report that shows a 2015 government crackdown on accessibility scofflaws never really happened and that the government has imposed just six monetary penalties despite thousands of known violations.
“We need enforcement taken out of the government’s belly and assigned to an independent, arms-length public agency,” said lawyer David Lepofsky, chairperson of the AODA Alliance, a non-partisan coalition that monitors progress on the province’s Accessibility for Ontarians with Disabilities Act (AODA.)
“The government should not be investigating itself,” he added.
The alliance has asked all party leaders to commit to moving enforcement of the AODA to an independent public agency, if elected premier in June.
Under the 2005 legislation, the first of its kind in Canada, Queen’s Park is responsible for developing, implementing and enforcing accessibility standards for Ontario’s 1.8 million people with disabilities to ensure the province is fully accessible by 2025. The act covers goods, services, facilities, accommodation, employment and buildings.
For example, the customer service standard requires restaurants to welcome service animals when accompanied by people with disabilities. Under the employment standard, employers must provide an accessible desk and washroom for an employee who uses a wheelchair.
A spokesperson for Tracy MacCharles, minister responsible for accessibility, said the government recognizes “there is more to do” and reorganized the ministry last fall “to focus solely on compliance and enforcement.”
A newly-created compliance and enforcement branch of the Accessibility Directorate of Ontario operates call centres to respond to consumer complaints and requests from organizations for help to meet reporting requirements, said Mahreen Dasoo. The branch is also responsible for “compliance outreach activities” and audits of organizations most likely to neglect their duties.
“To support the government’s efforts to increase reporting rates among businesses in Ontario, we launched a digital media marketing campaign targeting businesses and raised awareness about the deadline,” Dasoo said in an email. “We also connected directly with businesses, sending 70,000 emails, phone calls and letters reminding them of their requirement to report.”
But Lepofsky, who is blind, says Ontarians with disabilities still face too many barriers when they try to get a job, ride public transit, get an education, use the health care system, buy goods and services or eat in restaurants.
A big part of the problem, Lepofsky says, is that “a staggering” 57 per cent of Ontario’s 56,000 private and non-profit sector organizations with at least 20 employees have failed to file mandatory reports to the government declaring they have met current accessibility requirements.
“If they can’t even bother to file a report, what does that say about the priority they are giving to accessibility?” he said.
Lepofsky began highlighting the government’s lack of enforcement action in 2013 when some 70 per cent of mandated organizations had failed to file their reports. As a result, the government began conducting compliance audits of about 2,000 organizations a year.
In 2015, after annual compliance audits had dropped to 1,324 and a legislative review found the government needed to step up enforcement, former minister Brad Duguid told the Star he would take action to double the number of audits to 4,000 — or 1 per cent of Ontario’s 400,000 private businesses — starting in 2016.
But Duguid’s crackdown never happened, Lepofsky says. In 2016, the government initiated only 1,604 “compliance activities.” But these were, at most, a review of the documents and not an examination of an organization’s actual practices, he said.
A year later, there were 1,746 compliance activities, but still fewer than in 2013 and 2014, according to Lepofsky’s report.
Premier Kathleen Wynne’s September 2016 mandate letter directed MacCharles, the current minister responsible for accessibility, to “take steps” to increase by 50 per cent the number of private sector organizations in compliance with the act by 2017.
And yet, the government’s progress report for 2017 shows the non-compliance rate has remained unchanged at 57 per cent. It means 32,000 private sector companies required to file accessibility compliance reports have failed to do so, Lepofsky said.
Dasoo, in the minister’s office, said the directorate’s outreach and compliance team will “continue to work with organizations that missed their deadline and it is expected that the submission rate for the 2017 version of the report will continue to grow over the next two years.”
Robert Lattanzio, executive director of ARCH Disability Law centre, a specialty legal clinic funded by Legal Aid Ontario, called Lepofsky’s latest report “concerning.”
“If the government is serious about meeting its goal and serious about giving meaning to the AODA, there needs to be some very clear action. And a big part of that is enforcement,” he said in an interview.
“Enforcement is part of education,” Lattanzio said. “And compliance orders are part of that education process because they tell companies what they should be doing.”