ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
NEWS RELEASE – FOR IMMEDIATE RELEASE
United for a Barrier-Free Society for All People with Disabilities Web: https://www.aodaalliance.org
Email: aodafeedback@gmail.com
Twitter: @aodaalliance
Facebook: https://www.facebook.com/aodaalliance/
March 21, 2022 Toronto: In a disturbing rush to support a third year of electric scooters in Ottawa, even though they endanger safety and accessibility for people with disabilities, seniors, and others, members of Ottawa’s Transportation Committee contravened their duty to accommodate blind disability rights advocate David Lepofsky at its March 2, 2022 meeting, according to a complaint Lepofsky filed with Ottawa’s Integrity Commissioner. Lepofsky made a deputation to the Transportation Committee, urging Ottawa not to use vulnerable people with disabilities, seniors, and others as unwilling guinea pigs in a third pilot project with e-scooters in public places that endanger their safety and accessibility. In his affidavit submitted to the Integrity Commissioner, set out below, Lepofsky summarized:
“13. When it came time for me to speak, I faced disability discrimination in two ways.
a) Unlike sighted members of the Committee and deputants, I and other blind deputants only received electronic copies of the Citys staff report and supporting documents in an accessible format late in the day before this Transportation Committee meeting. That was far too late to be able to read them, much less to prepare a full response to them. For this reason, I asked the Committee to defer the e-scooter agenda item to a future meeting, so that we could read the documents to which we had to respond. The Chair and the Committee members did not grant this request, or even discuss or deliberate upon it. As such, Iunlike the e- scooter corporate lobbyistswas at a hopeless and unfair disadvantage in speaking to the issues before the Transportation Committee.
b) The Committee used the “Zoom webinars” platform for its meeting. I was able to log on to hear the proceedings, but was unable to perceive a link or button to click to enable me to speak to the Committee. I only learned of this right before I was to make my deputation. The Committee Clerk instead had me make my deputation over my phone, speaking to his phone. He held his phone up to his computer microphone in an effort to let the Committee members hear what I was saying to them. This is a far less effective way to present a deputation. Unknown to me until my deputation finished, my audio was cutting in and out. Committee members could not hear parts of my deputation. When I finished, a member of the Committee stated that he had not been able to hear much of my deputation. I asked the Committee and its Chair to let me make my deputation through an accessible medium, so that they could hear it all. I identified this as an issue of disability accessibility. This request was not granted or even brought to a vote of the Committee.”
14. As a result, I and the AODA Alliance which I serve were denied a fair chance to be effectively heard on an important issue of public policy that relates to health, safety and accessibility of people with disabilities and others. Contrary to requests of deputants with disabilities, the Committee voted that afternoon in favour of a third e-scooter pilot, with variations that do not reduce our disability concerns.”
“It would have been so easy for the Transportation Committee to accommodate my disability-related needs, had it taken a moment to take this seriously, rather than barrelling ahead to vote against people with disabilities, and in favour of e-scooters,” said Lepofsky, who chairs the non-partisan AODA Alliance which campaigns for accessibility for people with disabilities in Ontario, and which opposes dangerous e-scooters. “We need Ottawa City Council to stand up for people with disabilities, and to stand up to the e-scooter rental companies’ corporate lobbyists, when this issue is on the City Council agenda on March 23.”
Lepofsky asks the Integrity Commissioner to find that the Chair and members of the Ottawa Transportation Committee at the meeting during his deputation contravened section 7 of Ottawa’s Code of Conduct. It forbids discrimination, which includes this disability discrimination.
Last month, Ottawa’s Accessibility Advisory Committee recommended that Ottawa not again allow e-scooters, because they endanger people with disabilities. E-scooters, improperly racing at 20 KPH on sidewalks by uninsured, unlicensed, and untrained joy-riders are a silent menace to people with disabilities and others. E-scooters left strewn on sidewalks are a dangerous tripping hazard for blind people, and an accessibility barrier for people using a wheelchair. An Ottawa’s City Staff Report shows that e-scooters posed these dangers in 2020-21, but proposes inadequate measures that won’t eliminate them.
Contact: AODA Alliance Chair David Lepofsky, aodafeedback@gmail.com Twitter: @aodaalliance
For background, visit the AODA Alliance e-scooters web page and its March 2, 2022 brief to the Ottawa Transportation Committee.
Text of AODA Alliance Chair David Lepofsky’s March 20, 2022 Affidavit, Submitted to the Ottawa Integrity Commissioner
DECLARATION/AFFIDAVIT
I, David Lepofsky, CM, O.Ont., LLB (Osgoode Hall), LLM (Harvard University), LLD (Hon. Queens University, University of Western Ontario, Law Society of Ontario), of the City of Toronto, in the Province of Ontario, AFFIRM AND SAY AS FOLLOWS:
1. I am the Chair of the Accessibility for Ontarians with Disabilities Act Alliance (the AODA Alliance) and am blind. I am a lawyer, qualified to practice law in Ontario. I retired in December 2015 after working for 33 years as Crown counsel with the Ministry of the Attorney General for Ontario. I now hold the part-time position of Visiting Professor of Disability Rights and Legal Education at the Osgoode Hall Law School.
2. I have personal knowledge of the facts hereinafter deposed to except where stated to be based on information and belief. I have reasonable and probable grounds to believe that the members of Ottawa’s Transportation Committee, who were present during the Committee’s virtual March 2, 2022 meeting while I was making my deputation to that Committee about the issue of electric scooters (e-scooters), have contravened section 7 of the Code of Conduct. I understand that the Chair of the Committee is Tim Tierney and that the Vice Chair is Jeff Leiper. The other members of the committee were Mathieu Fleury, Catherine Kitts, Eli El-Chantiry, George Darouze, Diane Deans, Laura Dudas, Shawn Menard, Matthew Luloff, and Allan Hubley. I do not know whether any of them were absent when I was making my deputation. If any were absent, then I make no complaint against them and allege nothing against them. 3. In this affidavit, I:
a. provide a summary of my complaint.
b. explain what the AODA Alliance is.
c. explain my involvement with the AODA Alliance.
d. describe the e-scooters issue that is the backdrop to this complaint. e. set out the details about this complaint.
f. explain why this conduct amounts to disability discrimination against me, contrary to section 7 of Ottawa’s Code of Conduct, and g. summarize what I aim to achieve in this complaint.
A. Summary of this Complaint Under Section 7 of the Code of Conduct
6. This complaint of disability discrimination under section 7 of Ottawa’s Code of Conduct, applicable to certain members of Ottawa City Council, arises out of the treatment I received in connection with my deputation to the Ottawa Transportation Committee at its March 2, 2022 meeting. The key events at that meeting span about ten minutes and should be captured in the Youtube recording of the meeting during my deputation. On that meeting’s agenda was a report from Ottawa City staff, proposing that Ottawa City Council conduct a third pilot project in 2022 with e-scooters.
7. I was treated in an unfair and discriminatory way during that meeting by the chair of the Transportation Committee, and by the members present at that Committee meeting, in connection with my deputation on e-scooters.
8. On the morning of March 2, 2022, I powered up my computer and readied myself to make a deputation that I had requested to make to Ottawa City Council’s Transportation Committee. The Committee’s agenda included a report and recommendation from Ottawa City staff that in 2022, Ottawa should again allow e-scooters in public places. I, the AODA Alliance which I chair, and many others from the disability community have united to oppose e-scooters because they present a serious danger to safety and accessibility for people with disabilities, seniors and others, as I describe below.
9. This Transportation Committee meeting was exceedingly important for the many of us who oppose e-scooters. It would be our only chance to speak directly to a group of Ottawa City Council members, to try to convince them not to follow the City staff recommendation that endangers us. Ottawa’s Accessibility Advisory Committee had recommended that e-scooters not again be allowed in Ottawa. However, Ottawa City staff pushed ahead with its recommendation in favour of e-scooters, contradicting that important Accessibility Advisory Committee recommendation.
10. I was geared up to have to speak whenever our item was reached. As a deputant, I only get five minutes to cram in all our important points. We had filed a brief with the Transportation Committee the day before, which is available online at https://www.aodaalliance.org/whats-new/aoda-alliance-brief-urges-city-of-ottawas-transportation-committee-to-reject-wrong-headed-city-staff-proposal-to-hold-third-pilot-project-with-electric-scooters-dangers-proven-to-people-with-disab/. I had to prepare for the realistic chance that some or all members of the Transportation Committee had not read it before the meeting. I am an experienced lawyer who has argued cases at all levels of court. Squeezing an entire argument into five minutes is a stressful, daunting advocacy challenge at the best of times.
11. I dutifully logged onto the meeting link before 9:30 a.m., the meeting’s start time, using the link that the City Clerk’s office had sent me. As the day dragged on, there was no way for me to know when the e-scooters issue would be reached. I stayed tuned into the Ottawa Transportation Committee meeting on and off until our agenda item was finally reached, after 4 p.m. that day, with the exception of a 90-minute period when I had to log off to give a virtual lecture to law students.
12. We faced a very uphill advocacy challenge. Ottawa City staff made a presentation to the Transportation Committee that enthusiastically endorsed another e-scooter pilot in Ottawa, despite the fact that Ottawa survey data proved the dangers to people with disabilities, seniors and others, and despite the contrary recommendation from the Ottawa Accessibility Advisory Committee. Moreover, Committee members heard from corporate lobbyists from the e-scooter rental companies who endorsed that City staff report and recommendation.
13. When it came time for me to speak, I faced disability discrimination in two ways.
a) Unlike sighted members of the Committee and deputants, I and other blind deputants only received electronic copies of the Citys staff report and supporting documents in an accessible format late in the day before this Transportation Committee meeting. That was far too late to be able to read them, much less to prepare a full response to them. For this reason, I asked the Committee to defer the e-scooter agenda item to a future meeting, so that we could read the documents to which we had to respond. The Chair and the Committee members did not grant this request, or even discuss or deliberate upon it. As such, Iunlike the e- scooter corporate lobbyistswas at a hopeless and unfair disadvantage in speaking to the issues before the Transportation Committee.
b) The Committee used the “Zoom webinars” platform for its meeting. I was able to log on to hear the proceedings, but was unable to perceive a link or button to click to enable me to speak to the Committee. I only learned of this right before I was to make my deputation. The Committee Clerk instead had me make my deputation over my phone, speaking to his phone. He held his phone up to his computer microphone in an effort to let the Committee members hear what I was saying to them. This is a far less effective way to present a deputation. Unknown to me until my deputation finished, my audio was cutting in and out. Committee members could not hear parts of my deputation. When I finished, a member of the Committee stated that he had not been able to hear much of my deputation. I asked the Committee and its Chair to let me make my deputation through an accessible medium, so that they could hear it all. I identified this as an issue of disability accessibility. This request was not granted or even brought to a vote of the Committee.
14. As a result, I and the AODA Alliance which I serve were denied a fair chance to be effectively heard on an important issue of public policy that relates to health, safety and accessibility of people with disabilities and others. Contrary to requests of deputants with disabilities, the Committee voted that afternoon in favour of a third e-scooter pilot, with variations that do not reduce our disability concerns.
15. This complaint does not ask the Ottawa Integrity Commissioner to evaluate the Transportation Committee’s decision to approve Ottawa allowing e-scooters for a third year. My complaint is about the failure of the Committee chair and members of the Committee to fulfil their duty to accommodate my disability, up to the point of undue hardship, in order to ensure that I could fully and fairly take part in the Committee proceedings regarding the e-scooters issue. This constitutes discrimination based on disability contrary to section 7 of the Code of Conduct.
16. This complaint does not ask the Integrity Commissioner to assess the practices of Ottawa City staff or of the Ottawa Clerk’s office in choosing what formats to use when publicly posting documents in connection with an upcoming meeting of a committee of Ottawa City Council. Similarly, this complaint does not ask the Integrity Commissioner to assess the choice of Ottawa City staff or the Ottawa Clerk’s office of which virtual meeting platform to use, or their accessibility for people with disabilities. Instead, this complaint directly addresses how the Chair and members of the Transportation Committee responded to my two requests for disability-related accommodations at their March 2, 2022 meeting. B. Who is the AODA Alliance?
17. The AODA Alliance is an unincorporated, volunteer-run, non-partisan community coalition, established in the fall of 2005. Its mission is to contribute to the achievement of a barrier-free society for all persons with disabilities, by promoting the timely, effective, and comprehensive implementation of the AODA. Its activities are documented on its website at http://www.aodaalliance.org.
18. The AODA Alliance is the successor to the Ontarians with Disabilities Act Committee (the ODA Committee). From 1994 to mid-2005, the ODA Committee led a non-partisan province-wide campaign, advocating for the enactment of strong, effective disability accessibility legislation in Ontario. This culminated in the AODA’s enactment in 2005. The work of the ODA Committee is documented at: http://www.odacommittee.net.
19. The AODA Alliance is widely recognized as a credible non-partisan voice on disability accessibility issues.
20. The Ontario Government and members of the provincial legislature repeatedly and publicly recognized and commended the efforts of the AODA Alliance, and before it, the ODA Committee, for its volunteer advocacy on the cause of accessibility for people with disabilities.
21. In every provincial election starting in 1995, at least two of the major Ontario political parties have made election commitments concerning accessibility for people with disabilities. In every case where such commitments were made, they were set out in letters from the party leader to the ODA Committee up to 2005, and after that, to the AODA Alliance.
22. The AODA Alliance has provided input on accessibility issues to Ontario municipalities, including Ottawa, Toronto, Mississauga, Hamilton London and Brampton. Our input on accessibility issues has also been provided to community groups and government officials in several Canadian provinces, to the Government of Canada, and in other countries, such as Israel and New Zealand. C. What is My Involvement with the AODA Alliance?
23. I am intimately familiar with the work of the AODA Alliance, and of its predecessor, the ODA Committee. All my work for these coalitions has been as a volunteer.
a) I served as Co-Chair, and later as Chair, of the ODA Committee from early 1995 up to its dissolution in August 2005.
b)I was present during the establishment of the AODA Alliance and was a driving force behind its establishment as the successor to the ODA Committee. I initially took no leadership role with the AODA Alliance although I remained available to assist.
c) In early 2006, the AODA Alliance appointed me as its Human Rights Reform Representative. I served as lead spokesperson for the AODA Alliance during controversial legislative debates over a reform to the Ontario Human Rights Code.
d) From February 2009 to the present, I have served as Chair of the AODA Alliance.
24. Over more than two decades, I have had very extensive dealings with the Government of Ontario at all levels, both in my capacity with the AODA Alliance, and prior to that, as co-chair and then chair of the ODA Committee. In these capacities, I have met with Ontario Premiers, Ministers, Deputy Ministers, Secretaries of Cabinet, Assistant Deputy Ministers, and a myriad of other public officials in the Government of Ontario and the Ontario Public Service. I have similarly had extensive dealings with opposition parties.
25. I have also been extensively involved with advocacy on disability accessibility at the local and municipal area. I have met with a number of mayors, city council members and municipal public servants.
26. I have made presentations to the House of Commons and the Senate of Canada, to the Legislatures of Ontario and Manitoba, and to several municipal committees, further detailed below. I am no stranger to the process of making such presentations or deputations.
27. I have received several awards for my volunteer activities on disability accessibility issues, including my volunteer work for the ODA Committee and later for the AODA Alliance. Among these, I was invested as a member of the Order of Canada in 1995, as a member of the Order of Ontario in 2008 and in the Terry Fox Hall of Fame in 2003. I have received honorary doctorates from Queens University, the University of Western Ontario and the Law Society of Ontario arising from this activity. I also received an Access and Equity Award from the City of Toronto in 2002.
D. This Complaint’s Policy Background What is the Electric Scooters Disability Issue in Ottawa?
28. The debate over whether Ottawa should allow e-scooters is an important backdrop to this complaint.
29. In 2019, the Ontario Government passed a regulation that gives Ontario municipalities the authority to permit the use of e-scooters for up to five years as a pilot project. It did so at the behest of the corporate lobbyists for the e-scooter rental companies, and over the strong objections from Ontario’s disability community. It appeared to us that the e-scooter corporate lobbyists had the inside track with the Ontario Premier and the Ontario Ministry of Transportation. I led the AODA Alliance’s efforts in opposition to the enactment of that provincial regulation.
30. E-scooters present twin dangers to people with disabilities, seniors, and others:
a) In cities where e-scooters are allowed including Ottawa, e-scooters are regularly ridden on sidewalks even where sidewalk riding is prohibited. The silent menace of an uninsured, unlicensed, untrained, e-scooter joy-rider, racing at 20 KPH, endangers pedestrians with disabilities, seniors, and others.
b) In Ottawa and other cities allowing e-scooters, riders regularly leave them abandoned on public sidewalks. This is a tripping hazard for blind people like me and people with low vision. It creates mobility barriers for people using wheelchairs.
31. On January 22, 2020, the AODA Alliance made public an open letter (that I wrote) to all Ontario municipalities and to the Ontario Government. It opposes e-scooters. Eleven disability organizations co-signed that letter. It is at https://www.aodaalliance.org/whats-new/major-disability-organizations-open-letter-to-the-ford-government-and-ontario-municipalities-dont-allow-electric-scooters-on-our-roads-sidewalks-and-public-places-because-they-endanger-our-safe/ 32. Since the start of 2020, I have led the AODA Alliance’s effort at the municipal level, opposing e-scooters. This included, for example, making deputations remotely or virtually to the Accessibility Advisory Committees of Toronto (twice), Ottawa, Mississauga, Hamilton, London and Brampton. I made deputations to the City of Toronto Infrastructure Committee and the City of London Civic Works Committee.
33. In each community where we have advocated on this issue, it has been clear to me that we face an uphill battle against well-funded, well-connected and well-organized lobbying by corporate lobbyists for the e-scooter rental companies. They seek to get municipalities to opt into conducting pilot projects with e-scooters. They then try to secure contracts with municipalities to rent their e-scooters to the public.
34. The AODA Alliance documented the scope of corporate lobbyists’ efforts in Toronto. In 2020, the AODA Alliance made public a report that documented a feeding frenzy by the e-scooter corporate lobbyists at Toronto City Hall. It was based on Toronto’s official lobbyists’ register. The AODA Alliance’s report is available at https://www.aodaalliance.org/whats-new/new-report-reveals-corporate-lobbyists-feeding-frenzy-at-city-hall-to-pressure-toronto-city-council-to-lift-ban-on-electric-scooters-that-endanger-people-with-disabilities/ 35. On June 9, 2020, on the eve of Ottawa City Council’s first vote that approved a pilot project with e-scooters, I spoke by phone with senior officials in the office of Ottawa Mayor Jim Watson. I alerted them of our opposition to e-scooters and to the twin dangers that e-scooters create. This is documented in a June 10, 2020 AODA Alliance news release which I wrote, and which is available at https://www.aodaalliance.org/whats-new/will-ottawa-city-council-today-vote-to-conduct-a-deeply-troubling-experiment-on-ottawa-residents-and-visitors-by-allowing-electric-scooters-that-endanger-people-with-disabilities-and-others/ 36. Ottawa City Council nevertheless approved that e-scooter pilot for 2020, and a second one for 2021. Ample information presented to the Ottawa Transportation Committee and the Ottawa Accessibility Advisory Committee in 2022 documents that the twin dangers about which we warned have materialized in abundance in Ottawa.
E. The Details of the Complaint
i) Failure to Accommodate After Late Provision of Accessible Documents
37. At the March 2, 2022 Transportation Committee meeting, I and other similarly situated blind people were not effectively accommodated in our need for access to the Ottawa City Staff Report, and the several supporting documents that City staff placed before the Transportation Committee on the e-scooters issue. It is a fundamental requirement under the Ontario Human Rights Code, the Accessibility for Ontarians with Disabilities Act, and s. 15 of the Charter of Rights and Freedoms, that we, as people with disabilities, be given equal timely access to such documents in an accessible format. This did not occur here.
38. At some point during the week before the March 2,2022 Transportation Committee meeting, The City of Ottawa publicly posted a collection of documents online regarding e-scooters. This included the new report of Ottawa City staff (including their recommendation that Ottawa conduct a third pilot with e-scooters), and a series of supporting documents. I understand that these are provided to all members of the Transportation Committee in advance for them to consider when they decide how to vote on the Ottawa City staff’s e-scooter recommendations. For members of the public, they are provided sufficiently in advance so that they can decide if they want to make a deputation to the Committee, and so that they can prepare deputations that effectively address the specifics that have been placed by public officials before the Committee. This is important to make democracy work.
39. These documents were made available to the public at some time during the week before this Committee meeting in pdf format. It is not news that pdf format presents accessibility problems for blind people like me, who use screen-reading programs to be able to read electronic documents. I and the AODA Alliance have been among the many who have advocated for years that where documents are provided to the public in pdf format, they should also be provided in an alternative format that is accessible such as MS Word.
40. On learning of the public posting of these documents, I promptly emailed the official from the City Clerk’s office, asking for all those documents in MS Word format so that they would be accessible. That official had emailed me that the Ottawa City staff report (which was in pdf) was accessible, but the supporting documents were not. I explained to him by email that pdf raises accessibility concerns, and that I needed all the documents, including the Ottawa City staff report, in MS Word format, in order to be accessible.
41. The City Clerk’s office did not send me the City’s posted documentseither the City staff report on e-scooters or the supporting documentationin an accessible format, until late in the day on March 1, 2022, the day before this Transportation Committee meeting. In the meantime, I had undertaken my own efforts to convert the actual City staff report on e-scooters into a readable MS Word document. I cannot tell to what extent any information in the City staff report was lost during that conversion process.
42. I did not have time to read any of the City’s supporting documentation before I wrote the AODA Alliance’s March 1, 2022 brief to the Transportation Committee, or before the March 2, 2022 Transportation Committee meeting itself, which began at 9:30 a.m. the next morning. I therefore could not address any of those supporting documents in my deputation that day.
43. As noted earlier, the issue that I raise in this complaint is not the original decision to post these documents in pdf format. I anticipate that this was the responsibility of City staff. I have no knowledge that any members of the Ottawa Transportation Committee took part in the earlier decision over the choice of format of posted documents.
44. In the March 1, 2022 AODA Alliance brief to the Ottawa Transportation Committee, we alerted all Committee members in advance to this document accessibility problem. It states:
” We conclude this brief by noting that it is a painful irony that Ottawa has not made the Ottawa City Staff Report available in an accessible format. That violates the AODA’s Integrated Accessibility Standards Regulation and the Ontario Human Rights Code. Moreover, City Staff provided its Report in pdf format, claiming it was accessible. Yet it is widely known that pdf presents accessibility problems, and that where used, an alternative accessible format such as html or MS Word should also be provided at the same time.
Moreover, as of Friday, February 25, 2022, less than a week before Ottawa’s Transportation Committee is to consider e-scooters, the City of Ottawa acknowledged that it could not then provide the City Staff report’s supporting documents in an accessible format. Those were only provided less than a day before the March 2, 2022 Transportation Committee meeting, and only in pdf format (which, as just noted, presents accessibility problems). Here again, people with disabilities deserve better.”
45. At the outset of my March 2, 2022 deputation, I asked the Committee to defer the e-scooter agenda item to a future meeting, because the City had not provided the Ottawa City Staff Report and related background documents in an accessible format until late on the day before this Committee meeting. I identified that I am blind and need these documents in an accessible format to read them.
46. The Chair of the Committee and the Committee as a whole did not appear to even consider this request. The Chair did not seek any discussion of it with the Committee. No member of the Committee spoke up on this issue, in an effort to get my needs accommodated. Instead, the Committee simply forged ahead, had me continue my deputation, and later that afternoon voted in favour of a third pilot with e-scooters, with minor modifications that don’t allay the dangers to safety and accessibility for people with disabilities.
47. Some time that afternoon after my deputation, another blind presenter whom I know raised this same documents accessibility problem during his deputation.
48. That failure to accommodate alone violates s. 7 of the Code of Conduct. Of course, we could read those documents some time after that Transportation Committee meeting, but by then, it would obviously be too late. By then, the Committee had already debated and voted to support the third e-scooter pilot that we opposed.
49. This discriminatory lack of integrity goes to the very fairness of the Committee. Our opponents at this meeting, the corporate lobbyists for the e-scooter rental companies, would have been able to read all those documents in advance of the Committee meeting. In fact, some of those documents were written by them.
ii) Failure to Accommodate My Need to Effectively Communicate My Deputation to the Transportation Committee During the March 2, 2022 Transportation Committee Meeting
50. When asked twice by me during this meeting for accommodation, the Committee Chair and the Committee as a whole did not effectively address my disability-related accommodation needs that arose from the City’s choice of virtual meeting platforms. The Committee used a virtual platform called Zoom Webinar. It is different from the commonly used Zoom meeting platform. I make daily use of the Zoom meeting platform and am very familiar with its excellent accessibility features.
51. My experience on this date with the Zoom webinar platform was very problematic. In this instance I was able to log into the meeting and listen, which I had been doing on and off from 9:30 a.m. when the meeting began, until after 4 p.m. when the e-scooters issues was reached. I, like other upcoming deputants, can receive the audio and video of the meeting. However, we cannot unmute ourselves to speak when our turn comes. Instead we evidently must await a prompt being sent to us by the meeting host, and must accept it.
52. That afternoon, I never received a prompt to be able to join as a speaker and to unmute myself. I received an email from a City Clerk’s official during that afternoon telling me that I needed to accept a Zoom prompt so I could be added as a panelist (i.e. speaker) From this, I gather that a request was sent to me via the Zoom Webinar platform. However, my screen reader never read aloud any incoming request. My computer’s screen reading software did not detect and alert me to any request or any button to click to accept the invitation.
53. I immediately emailed the City Clerk’s official to ask what keyboard command can be used to accept their invitation to become a panelist. He replied that he will check. No effective solution was found. Keyboard commands are used, where available, by those of us who cannot use a mouse to click a button or other command.
54. I am a skilled blind computer user. I have had a great deal of success using the different Zoom Meeting platform, including being alerted to incoming notifications that are transmitted to me. I don’t know why the Zoom Webinars platform seemed to be different in this regard.
55. Because of this problem, I had no way to speak to the Committee via the Zoom Webinar platform. I was unable to discover this until shortly before I was to make my deputation.
56. I then tried to phone in using the Zoom phone numbers, which are provided in the City’s invitation to join the meeting as an alternative to joining via a computer. However, the Committee Clerk told me over the phone that one cannot use the Zoom Webinar phone numbers to speak to the Committee. Those phone numbers only let me listen to the Committee.
57. What ended up happening as a last resort is that the Committee Clerk offered to have me speak by phone to his phone. He held his phone up to his computer for the Committee to hear.
58. I was very upset and stressed by this, at the very time when I needed to remain calm and composed to make my deputation.
59. A review of the recording of this meeting confirms that my voice was only audible during part of my deputation. I was not aware as I spoke that my voice was cutting in and out at points. This precluded the Committee from hearing some key points I was making.
60. I only learned about this problem after I finished deliberating my deputation. After I finished speaking, one Committee member whom, I believe, was Eli El-Chantiry, stated that they could not hear much of my presentation and that they felt bad about this.
61. Upset, I immediately asked the Committee for another chance to make my deputation under circumstances where I can be assured that they heard it all. This in fact was the second time at this meeting I had raised a concern about the accessibility of the platform they were using for the meeting. At the start of my deputation, I alerted them that I could not speak to them via the Zoom webinars meeting. I asked the Committee at that earlier point to defer this e-scooter agenda item to a future meeting, both because of the problem regarding the accessibility of the City’s e-scooter documents (described above) and because of the fact that I had been unable to use Zoom Webinar to speak to their meeting.
62. On learning that the Committee had been unable to hear parts of my deputation, I explained that unlike Zoom Webinar, I am experienced with Zoom Meetings and know how very accessible it is. I indicated in substance that this is unfair to me, especially on an issue which itself bears on safety and accessibility for people with disabilities.
63. I was not allowed to make my deputation again, via a means that ensured that the Committee could hear my entire deputation. All that was done in response to my expressed concerns on this issue was for the Committee Chair to confirm with City staff that they had used this Zoom platform for earlier meetings with another committee. While short forms were used to describe that other committee, I believe it was an accessibility committee. The Committee chair concluded his response to my request by saying:
“David, just to be very clear, I’ve confirmed with the Clerks, it’s the exact same platform we use for ACC. So, we will bring this up to staff during staff questioning the end to ensure that there is compliance and standardization across the board.”
64. The Chair also confirmed with City staff that our brief was available to Committee members.
65. The fact that the Committee or others at the City have previously used the Zoom platform, whether this one or any other, was no answer to my accommodation request. I had reported a disability barrier to the Committee. It had adversely affected my ability to communicate effectively with the Committee. The Committee knew these facts and did not dispute them. I requested an accommodation. It was not provided.
66. After this, while the Committee was still proceeding on this agenda item, I phoned the Committee Clerk Mr. Zwierzchowski again to offer a solution. I told him my wife (who is sighted) was then available. If I could be sent another invitation via Zoom Webinar to take part, she could see and click the button even if it is inaccessible to me.
67. The Committee Clerk Mr. Zwierzchowski told me that the Committee Chair had already decided that I had had a chance to speak to the Committee and that I would not be given another chance to do so. I asked him to pass along my request. My recollection is that he was agreeable to do so, but from his words and tone of voice, I was not optimistic that this would produce any better response from the Committee Chair. I quickly sent Mr. Zwierzchowski an email stating:
” As discussed, I encountered accessibility problems that precluded me speaking to the Committee via Zoom webinar. My wife, who is sighted, could help me click on your inaccessible prompt if I could speak now or later today. I am available from now on. You said you would raise it with the Chair but the Chair had earlier said I would not be given another chance to speak. Please let me know if the Chair is agreeable now, now that I have a sighted person who can assist.”
68. I was given no further chance to speak to the Committee. The Committee heard the rest of the deputations and then discussed and voted. As noted earlier, it voted to approve a third pilot with e-scooters, subject to some variations which are utterly insufficient to address our disability concerns. I understand that the e-scooters issue now proceeds to Ottawa City Council on March 23, 2022. From our perspective on the merits of the e-scooters issue, it would have been far better had it proceeded with a “no” vote from the Transportation Committee, rather than a “yes” vote.
69. On March 7, 2022, I received an email from CHRISTOPHER ZWIERZCHOWSKI, which corroborates almost all key facts that underpin my complaint. It states: ” Good afternoon Mr. Lepofsky
Re: Transportation Committee meeting of Wednesday, 2 March 2022 Difficulty connecting to meeting via Zoom Webinar
I am following up on your e-mails from Wednesday evening following your delegation at Transportation Committee.
On behalf of the Office of the City Clerk, please accept our sincerest apologies for the technical challenges with the above meeting, especially as it relates to the difficulties you experienced in connecting to the meeting via Zoom Webinar.
You raised an issue of which we had previously been unaware, and we thank you for bringing it to our attention.
We have been using Zoom webinar for Standing and Advisory Committee (including the Accessibility Advisory Committee) meetings since May of 2020 and were not aware of the potential issues for some users. We have used the Zoom webinar (as opposed to Zoom meeting), and implemented the requirement for a passcode to join for Standing Committee meetings, on the advice of our IT security staff, given how widely the attendee link may be distributed for these meetings and the potential for the risk of being overtaken by anyone with malicious intent.
A preliminary review has led us to believe that the passcode requirement is potentially what led to your difficulties later; however, should you wish to share any more detail about what you experienced we would welcome that additional feedback.
We are liaising with the Citys Accessibility Office to improve our practices with a view to removing this requirement for delegations for whom it is a barrier for participation, allowing them to bypass the attendee waiting room, and to ensure our communications to delegations are clear in this regard.
With regard to the Transportation Committee meeting yesterday, at the time, the best solution we could manage, was to have you speak, via the Coordinators cell phone, into his laptop microphone, as we were not sure what other options were feasible to accommodate your participation. While not an ideal solution, as there were intermittent connection issues (e.g. choppiness), the Committee was able to hear most of your presentation. Furthermore, the written submission you provided, which was received by our office on Tuesday, 1 March 2022 was provided to all Members of the Committee and Council and staff to access, along with the other written submissions received for this meeting.
Your comments will be on the public record noted in the Minutes. Finally, should you wish to provide additional written comments before this matter is considered by full City Council on March 23, 2022, you are most welcome to do so –
any comments received on this matter after the meeting of the Transportation Committee will still be shared with Members of Council prior to Councils consideration of this matter at its next meeting (Wednesday, 23 March 2022, at 10:00 a.m.)
Please do not hesitate to contact our office should you wish to discuss the foregoing or should you have any other questions. Kind regards,
CHRISTOPHER ZWIERZCHOWSKI
STANDING COMMITTEE COORDINATOR
OFFICE OF THE CITY CLERK, COUNCIL & COMMITTEE SERVICES
CITY OF OTTAWA, 110 LAURIER AVE. W., OTTAWA, ON K1P 1J1
COORDONNATEUR DES COMITÉS PERMANENTS
BUREAU DU GREFFIER MUNICIPAL, SERVICES AU CONSEIL ET AUX COMITÉS VILLE D’OTTAWA, 110, AVE. LAURIER O., OTTAWA (ONTARIO) K1P 1J1 TEL/TÉL: (613) 580-2424, EXT./POSTE 21359
FAX/TÉLÉC: (613) 580-9609
EMAIL*/COURRIEL*: CHRISTOPHER.ZWIERZCHOWSKI@OTTAWA.CA”
70. I respectfully disagree with the thrust of two points in Mr. Zwierzchowskis email:
a) He stated that ” the Committee was able to hear most of your presentation.” However, as noted earlier, one Committee member said it was for him worse than that. Moreover, when I only have five minutes to speak, every sentence counts.
b) The fact that Committee members had the AODA Alliances brief is no consolation. I have no confidence that they all read it between March 1, 2022, when we were able to submit it, and March 2, 2022 at 9:30 a.m., when the Transportation Committees very busy agenda began. Indeed, the same Committee member who said he could not hear much of my deputation did not know we had filed a brief. He would not realistically have had time to read it before the Committee was called on to vote that day on the e-scooters issue.
71. As noted above, I do not ask the Integrity Commissioner to investigate the relative accessibility of the Zoom Webinars platform that Ottawa was then using, in comparison to any other platform. I only focus in this complaint on the erroneous way that the Transportation Committee Chair and Committee members acted when I twice alerted them to this problem on March 2, 2022, and when I twice asked for an accommodation as a result of the digital barrier that I had encountered.
F. The Duty to Accommodate People with Disabilities The Core Basis of This Complaint
72. Alone or in combination, these failures to accommodate constitute a very disrespectful and discriminatory way for elected officials to treat people with disabilities. It violates the duty to accommodate, which lies at the core of the Ontario Human Rights Code and the guarantee of equality to people with disabilities in the Charter of Rights and Freedoms. Section 7 of the Code of Conduct incorporates this duty.
73. The Committee members, including its Chair, cannot discharge their burden to show that it was impossible for them to do more to accommodate my disability in these circumstances. There is nothing so urgent with the proposal of a third e-scooter pilot that it necessitated the Committee in barreling ahead on March 2, 2022 despite these demonstrated disability barriers.
74. This complaint is brought under the requirement in section 7 of Ottawa’s Code of Conduct. It requires members of Ottawa City Council not to engage in discrimination, including discrimination based on disability. My total blindness is unquestionably a disability within the meaning of the Ontario Human Rights Code.
75. At the core of the ban on disability discrimination in the Ontario Human Rights Code, the Charter of Rights and Freedoms and correspondingly, section 7 of Ottawa’s Code of Conduct is the duty to accommodate a person’s disability-related needs up to the point of undue hardship. I am very familiar with this law. I have taught judges, lawyers and law students about it. The Supreme Court of Canada has cited with approval a law journal article that I wrote on the topic. I have argued duty to accommodate cases in court and before the Human Rights Tribunal of Ontario on the topic of the duty to accommodate people with disabilities.
76. As detailed above, I made two requests of the Transportation Committee Chair and Committee members during my March 2, 2022 deputation. These were disability-related requests to be accommodated, by adjourning the e-scooters topic to a later date (or by giving me another chance to speak to the Committee through an accessible means where the Committee could hear my entire deputation. Neither accommodation was provided.
77. Making this worse, there was no effective effort to investigate alternative solutions before refusing this request, contrary to the “procedural duty to accommodate.” The Supreme Court of Canada incorporated the procedural duty to accommodate into Canadian law. It held in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (1999) 3 SCR 3 (quoting an article I had written:
“Notwithstanding the overlap between the two inquiries, it may often be useful as a practical matter to consider separately, first, the procedure, if any, which was adopted to assess the issue of accommodation and, second, the substantive content of either a more accommodating standard which was offered or alternatively the employer’s reasons for not offering any such standard: see generally Lepofsky, supra.
78. The Transportation Committee Chair and Committee members have the burden to prove that it was impossible for them to do anything more to accommodate my requests, after I made those requests, without undue hardship to the City of Ottawa. They are expected to take serious and substantial efforts to accommodate. They did not. For example:
a)The Committee Chair could have formally or informally raised with the Committee the request to defer the e-scooters topic to a future meeting. There was nothing urgent about deciding that issue on March 2, 2022. Had time been somehow of the essence, the Transportation Committee could have explored setting up an additional meeting a few days hence, to consider the e-scooters issue.
b) When the Transportation Committee Chair did not raise this, any member of the Transportation Committee present could have formally raised a Point of Order (if permitted), or informally asked the Committee to consider my request for the e-scooters matter to be deferred to another date. No one did so. From the entire meeting as a whole, it was clear that these Committee members interact in a relaxed, informal and collegial way.
c) The Transportation Committee could have considered hearing deputations from those deputants who did not need to receive the relevant documents in an accessible format. That would have made use of Committee time while only deferring, to a future day, deputations from those of us who needed them in an accessible format. Here again, neither the Committee Chair nor any member of the Committee then present raised or discuss this option.
d) As for my second accommodation request, once I alerted the Committee of the need for me to be able to make my deputation through an accessible platform (which I twice requested, once at the start of my deputation and once at the end), so that the Committee would hear my entire presentation, there would be no undue hardship in the Committee Chair in asking City staff, such as the Clerk’s officials who helped manage the meeting logistics, to explore setting this up. When the Chair did not do so, it was open to any other members of the Committee then present to raise this for discussion. No one did so.
e) Even if the Committee was determined to finish the e-scooters topic that day, it would not have caused the Committee or the City of Ottawa any hardship, much less an undue hardship, to allow me another five minutes to speak to the Committee.
79. These accommodation requests were not rendered irrelevant due to the Committee’s ultimate vote. To the contrary, the Committee ended up voting for the position supported by the e-scooter corporate lobbyists, who got a full and fair hearing, and against the disability position that I and others were raising, after we did not get a full and fair hearing due to this failure to accommodate. G. What I Aim to Achieve By This Complaint
80. My objective in this complaint is to achieve real public accountability for elected members of a City Council for their conduct which does not ensure that people with disabilities such as myself can fully, equally and fairly take part in the public deputation process of meetings of that City Council and their committees. A Committee Chair and other members of a City Council’s Committee should not give such short shrift to such simple requests for reasonable accommodation, and then simply barrel ahead to make a policy decision which they have been warned will endanger safety and accessibility of vulnerable people with disabilities, seniors and others. If the Integrity Commissioner finds merit in this complaint, and makes a public finding that the Code of Conduct was contravened, this can provide an important signal to these members of Ottawa City Council, and to all others, that such conduct was wrong and should never be repeated. Only through the formal accountability that an Integrity Commissioner’s finding can provide is there a hope that something positive can emerge from the way I was treated on March 2, 2022. No one else should have to go through what I had to experience on March 2, 2022.
81. I and the AODA Alliance are strictly non-partisan. We don’t support or oppose any party or candidate in any federal, provincial or municipal election.
82. It is not sufficient for a member of City Council to simply say they are sorry, that they meant no harm, and that any disability barrier was unintentional. The disability barriers that we people with disabilities are typically created without any hostile motive or intention to discriminate. The Supreme Court of Canada made it clear that it is the impact of such conduct, and not the underlying intent, by which such conduct is judged.
83. In this complaint, I ask that the Transportation Committee Chair and the Committee members who were present at this meeting be evaluated, taking account what they could have done in the face of my requests for disability accommodation. For example:
a) The Committee Chair was in charge of steering the meeting, and had ample discretion to act. He could have responded to each of my requests for accommodation by engaging a discussion by the Committee at that time. He could have directed Committee staff to try to get me set up to speak to the Committee again later that afternoon through a means that would enable the Committee to hear my entire deputation, rather than refusing to allow this.
b) When the other Committee members heard my requests to be accommodated, and saw that the Chair was not providing any such accommodation, any of them could have formally or informally asked the Committee to consider my requests. None did so.
84. Discrimination is everyone’s business, according to our courts. I don’t want those who are the subject of this complaint to slough off responsibility, either on City staff or on other Committee members. Each could have done more than nothing.
85. This Affidavit is made for the purpose of requesting that this matter be investigated and for no improper purpose.