Accessibility for Ontarians with Disabilities Act Alliance Update
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/
February 10, 2022
SUMMARY
What did it take to force the Ford Government to extend its February 28, 2022 deadline for renewing an expired Ontario health Card, and to enable people to use an Ontario Photo ID Card in lieu of a driver’s license to renew their Health Card online? It took a court application!
When the media asked the Government questions about its refusing to allow a person to use a Photo ID Card in lieu of a driver’s license to renew their Health Card online, in several instances, the Ford Government simply did not answer. When CNIB wrote the Government over two years ago about this, the Government said they were working on it. Over a year later, they still had not fixed the obvious problem.
In virtual meetings in December and January, senior Government officials did not dispute that this all amounted to a disability barrier. However, they couldn’t explain why a proper solution was not to be announced.
It took three things to change it all. First, AODA Alliance Chair David Lepofsky had to file a court application two weeks ago. Second, he got his case listed before a Superior Court judge yesterday, so that he could request the scheduling of an urgent hearing in the next week or so. Government lawyers had to be ready for a judge to ask pointed questions.
It was 25 minutes before that virtual court appearance that the Ford Government issued its February 9, 2022 news release that announced its corrective action. The Government was potentially about to face the music.
Third, it took media attention on this issue. It certainly helped when TVO’s The Agenda with Steve Paikin gave it airtime across Ontario, as did CBC Radio news and Dahlia Kurtz nationally on SiriusXM Radio. . It also helped when some local radio stations covered it.
This all cries out for an answer to an important question: Why did it take a court application and an upcoming court scheduling hearing to get the Government to take corrective action? This behaviour shows that it is hard to take seriously the Ford Government’s claims to “lead by example” on accessibility for people with disabilities.
What does it take to confront the Ford Government with a case that it cannot credibly answer in court? If you want to know the answer in detail, we invite you to read the 16-page affidavit that David Lepofsky submitted to the Superior Court in this case. We set it out below. It includes 19 documentary exhibits at the end which support the facts to which David Lepofsky attests. This affidavit describes in clear terms the kind of bureaucracy that people with disabilities too often face.
We make this affidavit public as a resource so that anyone interested can learn about the barriers we face when we try to fight against disability barriers.
For more background, check out the AODA Alliance’s January 26, 2022 news release that announced this court application and the AODA Alliance’s February 9, 2022 news release that announces the Government’s capitulation.
If you have not yet seen it, we remind you to watch online the February 3, 2022 interview on TVO’s The Agenda with Steve Paikin that included David Lepofsky and CILT executive director Wendy Porch. That interview discusses several serious barriers in Ontario’s health care system confronting people with disabilities, including this Health Card renewal issue.
MORE DETAILS
Text of David Lepofsky’s January 31, 2022 Affidavit in His Case Against the Ford Government Regarding Online Renewal of Expired Ontario Health Cards
ONTARIO
Superior Court of Justice
BETWEEN:
David Lepofsky
Applicant
– and –
General Manager of the Ontario Health Insurance Plan and the Minister of Health and Long-Term Care
Respondents
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 have personal knowledge of the facts and matters hereinafter deposed to except where stated to be based on information and belief. Who I Am
2. I am the Chair of the Accessibility for Ontarians with Disabilities Act Alliance (the AODA Alliance) and am blind. As such, I have knowledge of the matters to herein deposed. Where I rely on knowledge, information or believe obtained from a specific external document regarding this case’s facts, I identify the source of that information and verily believe it to be true.
3. I am a Canadian citizen. I live in Ontario. I have been physically present in Ontario for at least 153 days in the last 12 months. I am therefore entitled to health services covered by the Ontario Health Insurance Plan (OHIP).
4. I been totally blind for over four decades. I am an Ontario lawyer and a part-time law professor. I hold the current position of Visiting Professor of Disability Rights and Legal Education at the Osgoode Hall Law School.
5. For many years, I have been a volunteer advocate for the rights of people with disabilities. Since 2009, I have served as the chair of the Accessibility for Ontarians with Disabilities Act Alliance. It is a volunteer non-partisan disability rights coalition that advocates for accessibility for people with disabilities.
6. Among other things, on behalf of the AODA Alliance, I have been very active advocating to tear down the many disability barriers in Ontario’s health care system. Since the start of the COVID-19 pandemic in March 2020, I have been especially busy on behalf of the AODA Alliance addressing the additional disability barriers that people with disabilities have faced in Ontario’s health care system during the pandemic. Our advocacy efforts are set out on our website’s health care page at www.aodaalliance.org/healthcare. Our efforts during the pandemic are set out on our website’s COVID-19 page at / www.aodaalliance.org/covid. Government Photo ID
7. Probably like most people in Ontario and most Canadians, I have a health card.
8. Unlike many people in Ontario of my age, I do not have a drivers license. Because I am totally blind, I am unable to get a drivers license. I know of other people with disabilities who cannot get a driver’s license due to their disability.
9. Historically, the driver’s licence has served two functions. First it is official proof that a person is permitted to drive a motor vehicle. Second, and equally important, it is widely accepted as an official Ontario Government photo identification.
10. Without a drivers license, many people who cannot drive due to disability found themselves in a situation where they needed to provide official Government photographic proof of identity but could not do so.
11. Accordingly, some within the Ontario disability community put pressure on the Ontario Government to create a non-driving equivalentthe Ontario Photo ID Card. I was not involved in the advocacy efforts to get the Ontario Photo ID Card established but was happy when it was created and appreciative of those who did the work advocating for it. It may well be that others outside the disability community also advocated for it.
12. At some time Around 2011, the Ontario Government began to make available an official Ontario Photo Identification Card (the Ontario Photo ID Card) pursuant to the Photo Card Act, 2008, S.O. 2008, c. 17. The purpose of that card is to provide a form of official Ontario Government photo identification, equivalent to a driver’s licence, for persons like me who do not have or cannot get a driver’s licence. Section 9 of the Act provides that The holder of a photo card may, in his or her discretion, present it in any transaction or circumstance, including any transaction or circumstance where the holder wishes to identify himself or herself.
13. For identification purposes, I understand that the Ontario Photo ID Card was designed to operate in parallel with the drivers licence scheme. Thus, section 13(2) of the Act provides that No person who holds a valid drivers licence shall apply for, secure or retain in his or her possession a photo card.
14. When this card was first introduced, Kathleen Wynne, then Minister of Transportation, wrote:
There are over 1.5 million people in Ontario over the age of 16 who do not have a drivers license. This includes some of our most vulnerable populations like people with disabilities, seniors and the homeless.
Shortly after I became the minister I had a meeting with advocates from the visually impaired community. They asked me to move forward on a project that would allow them to get a non-drivers drivers license. Until then, I had not fully appreciated the barriers that exist for people who do not have a drivers licence for identification.
Attached hereto and marked as Exhibit A is a true copy of an August 25, 2011 column by the Right Honourable Kathleen Wynne.
15. The official announcement from the Ministry of Transportation about the Ontario Photo ID Card also noted that Ontarians with disabilities, seniors and other advocacy groups provided input on the design and availability of the card, Attached hereto and marked as Exhibit B is a true copy of the June 9, 2011 announcement.
16. A Spotlight announcement from the Ministry of Children, Community, and Social Services in August of 2011 also noted that
The card, for individuals 16 years of age and over, will make it easier for people with a developmental disability who dont have a drivers licence to do things that require official identification, such as: apply for work
open bank accounts, and
access government services.
Attached hereto and marked as Exhibit C is a true copy of this announcement.
17. I obtained an Ontario Photo ID Card in 2013 by attending at a ServiceOntario office. Health Card Renewal
18. Before the pandemic, I was able to renew my Ontario Health Card by visiting a ServiceOntario location, lining up, and being served by a ServiceOntario official. One of the services provided by ServiceOntario, pursuant to Service Provider Organizations – ServiceOntario, O Reg 475/07, s. 1.2 is accepting and processing applications for the issuance, replacement or renewal of a health card
19. By renewing my OHIP card, the ServiceOntario official at the time approved my continuation to be an insured person. 20. My Ontario Health Card expired during the COVID-19 pandemic.
21. However, like other individuals who qualify for OHIP coverage, I have been able to continue to receive insured health care services covered by OHIP, by presenting my expired Ontario Health Card to a health care provider.
22. This was only possible because, in the middle of March 2020, the Ontario Government announced that because of the pandemic the Ministry of Transportation and Ministry of Health, in cooperation with the Ministry of Government and Consumer Services and ServiceOntario, is extending the validity period of driving products, services and health cards. They stated that they were doing so because these changes would reduce the need for in-person visits to ServiceOntario, International Registration Plan offices and DriveTest centres during the COVID-19 outbreak, helping to promote social distancing and contain the spread of the virus. Attached hereto and marked as Exhibit D is a true copy of the March 19, 2020 announcement from the Ministry of Transportation.
23. This decision, which treated the holders of all Health Cards equally, allowed any insured person to obtain medical treatment in Ontario even though their Ontario Health Card had expired.
24. On or before September 1, 2021, the Ministry of Transportation announced that
The Ontario government is reinstating renewal requirements for drivers licences, licence plate stickers, Ontario Photo Cards, Ontario health cards, and other products that would have expired on or after March 1, 2020, but were extended to provide immediate relief to Ontarians during the COVID-19 pandemic. Those needing to renew their provincial documents are encouraged to use ServiceOntarios convenient and easy-to-use online option.
To ensure everyone has enough time to renew, Ontario has extended the renewal deadlines for most drivers licences, licence plate stickers, and Ontario Photo Cards and health cards until February 28, 2022.
Attached hereto and marked as Exhibit E is a true copy of this announcement.
25. As a result of that decision, people whose Ontario Health Card has expired, like me, must renew an Ontario Health Card by February 28, 2022. Otherwise, we will not be able to receive OHIP coverage for health services until after the Health Card is renewed.
The Road to this Case’s Disability Barrier- My Ontario Health Card and Ontario Photo ID Card
26. The Health Insurance Act, R.S.O. 1990, c. H.6, s. 11.1(3) (the Act) requires that in order to receive health care services covered by OHIP, I, like other individuals entitled to OHIP benefits, must be able to present a valid Ontario Health Card to a health care provider.
27. Section 4 of the Act allows for the appointment of a General Manager of OHIP, and sets the powers and duties of that general manager, including the power to perform such other function and discharge such other duties as are assigned to the General Manager by this act and the regulations or by the Minister.
28. Section 45 of the Act allows the Lieutenant Governor in Council to make regulations, and section 45(c.2) authorizes the Lieutenant Governor in Council to make regulations enabling the General Manager to set requirements, including requirements to provide documentation, relating to registration or renewal of registration as an insured person, or to verify a persons continuing eligibility to remain registered as an insured person, and making the meeting of any such requirements a condition of being or continuing to be an insured person.
29. General Regulation R.R.O. 1990, Reg. 552, enacted under the Act, provides in s. 4(1) that An application to establish entitlement to be, or to continue to be, an insured person shall be in the form approved by the General Manager.
30. Exercising the authority given to him, the General Manager has set requirements for the renewal of an Ontario Health Card online. In particular, apparently going back as far as May 1, 2018, the General Manager has allowed health cards to be renewed online so long as the insured individual satisfies the following three requirements: * A valid driver’s licence to verify identity as a security measure * To have lived at the same address at least 90 days prior to renewing * To keep all other personal details the same
Attached hereto and marked as Exhibit F is a true copy of the May 1, 2018 announcement from the Ministry of Government and Consumer Services.
31. Allowing someone to renew their Ontario Health Card online is convenient. It potentially saves driving time and waiting time. However, during the pandemic this ability to renew a Health Card online is potentially lifesaving because, by keeping people apart, it prevents the spread of COVID-19 and other diseases.
32. However, the General Manager and the Government of Ontario do not allow Ontario Health Cards to be renewed online using a valid Ontario Photo ID Card that the Ontario Government issued to me.
33. Although my Ontario Photo ID Card can generally be used by me for identification purposesto allow me to open a bank account, to prove to the teller at a LCBO that I am old enough to buy alcohol, and to prove my identity at a polling station during an electionI am not allowed to use my valid Ontario Photo ID Card (which is issued by ServiceOntario) in lieu of an Ontario driver’s licence (also issued by ServiceOntario) to renew my expired Ontario Health Card online.
34. I do not have a driver’s licence. Because I am blind, I cannot qualify for an Ontario driver’s licence. I therefore cannot renew my expired Ontario Health Card online.
35. Both the Ontario driver’s licence and the Ontario Photo ID Card, which is administratively managed by the Ontario Ministry of Transportation, can be renewed online. My wife, who is sighted and can drive, told me and I believe it to be true that she recently renewed both her driver’s licence and Ontario Health Card online. 36. I recently renewed my Ontario Photo ID Card online.
Hardships of Having to Renew My Expired Ontario Health Card In Person at a ServiceOntario Office
37. I have a serious, and I believe a well-founded, fear of attending a ServiceOntario office in person to renew my Ontario Health Card, even if fully masked.
38. Because I am blind, I will need a sighted person to assist me in navigating an unfamiliar ServiceOntario office. This is so despite the fact that I have good orientation and mobility training, and I have travelled independently for many years as a blind person. I have never taken time to learn the route through any ServiceOntario offices on my own. Any time in the past that I have visited a ServiceOntario office, I have been accompanied by a sighted friend or family member who has walked next to me, with my holding their arm, as my sighted guide.
39. My wife is the only sighted adult in my “bubble” who theoretically could guide me at a ServiceOntario office. However, I will not risk having my wife go to ServiceOntario as my sighted guide. She is immunocompromised. Last January, she had a very dangerous allogeneic stem cell transplant that was required to treat a rare, serious and deteriorating blood cancer that reached a dangerous stage. The medical procedure last January wiped out her entire immune system. It is now rebuilding. Although she has had four COVID-19 vaccinations, it is not clear of how much protection they give her. All her childhood vaccinations were wiped out and must be re-administered. She is now in the slow process of having them gradually re-administered over time. As a result, I and my wife have had to be extremely careful during the pandemic due to her vulnerability.
40. Aside from the concerns about my wife, I have concerns about my own health. I will turn 65 this June. As such, I am in an age category where added caution has repeatedly been recommended to the public.
41. Even though I have had three COVID-19 vaccine injections, it is widely reported that the highly contagious Omicron variant can and does infect people who are triply vaccinated and properly masked. It can be transmitted by people who are infected though fully vaccinated, who have no symptoms, and who don’t know they are infected. Even a negative COVID-19 test does not provide 100% assurance that they are not infected and contagious.
42. Quite a number of people whom I know have gotten the virus, although they report that they were fully vaccinated and were being very careful to avoid the virus. I am tracking troubling daily reports of infection and hospitalization numbers.
43. We are therefore following very cautious practices when it comes to exposure to the virus. Indeed, we would have had to be very careful through her recovery had there been no pandemic, due to my wife’s stem cell transplant.
44. For the health reasons explained above, During the pandemic, I do not want anyone at a ServiceOntario coming close enough to me to guide me, even if they are fully vaccinated and wear proper personal protective equipment. If I try to navigate the ServiceOntario venue unassisted, I could easily, unintentionally and unknowingly get within two meters of another person. If a person is standing near me, but is silent, I may not know they are there. I have had many experiences in my life when well-meaning people in public sometimes come over to me and silently grab my arm, thinking they are helping me, without saying anything first. They do this even though I don’t want any help and have not indicated any desire for or need for any help, and even though one does not properly guide a blind person by grabbing their arm. Beyond all of that, having a sighted public servant assist blind people who come to a ServiceOntario office, by guiding them, will increase risks to that public servant.
45. My pre-pandemic experience with ServiceOntario did not leave me with abiding confidence in its approach to accommodating people with disabilities. When I went to get a new Ontario Health Card a few years before the COVID-19 pandemic, a ServiceOntario official handed me a piece of paper purportedly with a number written on it, and told me to watch the video monitor to know when my number is reached. I was obviously blind, holding a white cane in plain view. I would obviously not be able to read either the number of the paper, or the numbers displayed on the video screen.
46. I had a sighted person with me at the time, but that does not justify such an obviously inappropriate practice. Only after I raised concerns about this obvious denial of accessible customer service with a deputy minister in the Ontario Government was I told that they would try to improve that specific procedure. No senior official tried to justify the treatment to which I was subjected, nor denied that it had happened. That incident took place years after enactment in 2007 of the Customer Service Accessibility Standard under the Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11 and after the Ontario Government had claimed to lead by example on providing accessibility for people with disabilities.
The Ontario Government Has Been On Ample Notice from Others for at Least Two Years About The Obvious Disability Barrier in the Ontario Health Card Online Renewal System
47. In my capacity as chair of the AODA Alliance, over the years I have had many conversations with senior officials of the Ontario Government on many issues relating to people with disabilities.
48. Publicly, the Government has claimed to lead by example on accessibility for people with disabilities, and to take an all of government approach to disability accessibility. For example, these commitments were made at a media event on February 28, 2020 before the pandemic began. By this, I have understood that the Government claims that it would exemplify good disability accessibility practices, as a role model for public and private sector organizations. I also understood this to mean that rather than leaving responsibility for making Ontario Government services accessible to people with disabilities to one Ministry or office, or to a few siloed accessibility officials, the Government would ensure that accessibility efforts were made by public officials across the Ontario Government.
49. It is impossible to reconcile those government promises with the Government’s unnecessary and inexplicable retention of the disability barrier in being able to renew my Ontario Health Card online. In my experience, the disability barrier in renewing one’s Health Card online should have been immediately obvious to the Ontario Government well before it was raised by any individuals or organizations external to the Government.
50. Both before and after I and the AODA Alliance got actively involved with advocating on the Health Card renewal issue, the Government was on clear, ample and public notice from others that this was a disability barrier that needed to be fixed, whether or not it had also been identified within the Ontario Public Service. From public documents available on the internet that I include as exhibits to my affidavit, I here describe examples of that notice with which I am familiar.
51. I am thoroughly familiar with the fact that the CNIB engages in advocacy efforts for law and policy reforms for people with vision loss such as me. I have been advised by Thomas Simpson, CNIB’s Executive Director of Public Affairs and Come to Work, and do verily believe that on or about January 23, 2020 and later on February 18, 2020 the Canadian National Institute for the Blind (CNIB) wrote senior Ontario Government officials, Minister Christine Elliott, the Minister of Health, and Minister Lisa Thompson, who was then Minister of Government and Consumer Services, to point out that the online Health Card renewal requirement of a driver’s license is a barrier for people with vision loss and that people with sight loss are entitled to the same level of service as anyone else. A copy of these letters, which was taken from the CNIB website with the headline that states: “Ontario Health Card renewal process isnt accessible to Ontarians with sight loss”, together with some of the information from the webpage, is attached hereto and marked as Exhibit G.
52. I have been advised by the same Thomas Simpson, and verily believe that at the end of March 2020, the CNIB received a letter from Lisa Thompson, then Ontario Minister of Government and Consumer Services, in which the Minister stated that the Government realized that the requirement to have a driver’s license to renew a Health Card online “does not work for everyone.” The letter also stated:
I have shared your email with the ministry staff who are considering how we can provide better online government services. I would like to assure you that ServiceOntario intends to improve the online health card renewal service, adding functions that make it easier for more people to use it, including those without drivers licences. We appreciate and will carefully consider your suggestion that there be an option to use the Ontario Photo Card number for those who do not have a drivers licence. Ministry staff would be happy to update you in the months ahead around planned timing for these changes.
A partial copy of that letter, which was set out in the CNIBs webpage, is attached hereto and marked as Exhibit H. I have been advised by Thomas Simpson and verily believe that CNIBs response to that, which was posted on November 19, 2021 and is attached hereto and marked as Exhibit I, included the following comment:
With the closure or restriction of in-person services across the province during the pandemic, this has also meant that Ontarians who are blind, partially sighted or Deafblind have had no recourse to renew this important government document either in person or online. As in-person services resume, this still puts Ontarians with sight loss at an unfair disadvantage of having to visit a government office during a global pandemic.
53. On November 21, 2021, the CBC reported on the hardship people with disabilities had in renewing their Ontario Health Card by attending at a ServiceOntario centre. A copy of this report is attached hereto and marked as Exhibit J. Among other things this article reported that the province refused to provide an on-the-record statement for this story.”
54. I am also aware that the Government has been taken to task for this issue in the Legislature. On December 6, 2021 Ms. Jill Andrew raised a question during Question Period concerning this barrier that disproportionally impacts people with disabilities. Attached hereto and marked as Exhibit K is a true copy of this exchange taken from Hansard.
55. I have been informed by Peyton Veitch, who was the assistant to Joel Harden MPP, and do verily believe that on December 7, 2021, Joel Harden, a member of the Ontario Legislature and the disability critic for Ontario’s New Democratic Party, wrote the Ontario Minister for Government and Consumer Services, urging that Ontario’s discriminatory regime for online renewal of the Ontario Health Card be rectified. A true copy of that letter is attached hereto and marked as Exhibit L.
56. I am also aware that on December 20, 2021, Patricia De Guire, Chief Commissioner of the Ontario Human Rights Commission, wrote to the Honourable Christine Elliott, Minister of Health Honourable Ross Romano, Minister of Government and Consumer Services Honourable Caroline Mulroney, Minister of Transportation urging that this disability barrier be removed. A true copy of this letter, which is attached hereto and marked as Exhibit M, includes in part:
“I am writing to encourage you to make sure people with disabilities and older adults will have the same opportunity as others to obtain the health card renewal online.
This online service allows citizens to renew their health card online if they have a current drivers license and meet other criteria such as not needing a new photo (which is required every 10 years). However, many citizens with disabilities do not have a drivers license. As many people with disabilities also face barriers in travel and may be more vulnerable in any exposure to COVID-19, it is especially important that they be able to access, use and benefit from the convenience of any online services available to avoid travel and in person services.”
57. In the foregoing exchanges and public documents, I have not seen a reason, much less a compelling reason, from the Government or from any Minister for failing to allow a person in my position to renew an Ontario Health Card online, using a valid Ontario Photo ID Card in lieu of a valid driver’s licence.
Efforts by Me and the AODA Alliance to Get the Ontario Government to Remove this Disability Barrier
58. On behalf of the AODA Alliance, and acting as a volunteer, I have raised this issue of obvious disability discrimination with the Ontario government. I have alerted the Ontario Government to the urgent need for this disability barrier to be rectified. I have asked for this disability discrimination to be swiftly removed and for the February 28, 2022 deadline to be immediately and publicly extended if the problem is not now solved.
59. I had an introductory virtual meeting on November 25, 2022 with Ontario’s new Deputy Minister for Seniors and Accessibility, Carlene Alexander. As a result of that meeting, she arranged for me to have a virtual meeting on December 16, 2021 with several senior Ontario Government officials to raise this disability barrier in the process for renewing an Ontario Health Card. I understood that the public officials wanted time before holding that meeting to explore solutions to this problem.
60. On December 16, 2021, I had a virtual meeting with several senior Ontario Government officials. Attending for the Government were Deputy Minister for Seniors and Accessibility Carlene Alexander, Letitia Nolasque, Executive Advisor to Deputy Minister Alexander, Alison Drummond, Acting Assistant Deputy Minister for Seniors and Accessibility, Accessibility for Ontarians with Disabilities Division, Deputy Minister of Government and Consumer Services Renu Kulendran, Dafna Carr, Associate Deputy Minister of Government and Consumer Services, Ontario Shared Services, Joanne Anderson, Assistant Deputy Minister of Government and Consumer Services, ServiceOntario – Operational Support, Pauline Ryan, Director, Ontario Health Insurance Plan Division at the Ministry of Health On behalf of Deputy Minister of Health Catherine Zahn (who did not attend) and Assistant Deputy Minister of Health Patrick DiCerni, (Drugs and Devices Division) who is the respondent General Manager of OHIP.
61. At this December 16, 2021 virtual meeting, I explained why it is a disability-discriminatory barrier to require a driver’s license to renew a Health Card online when many disabled people, myself included, do not and cannot have a drivers license but do have an equivalent means of proving identity. I explained why I cannot go to ServiceOntario in person, as described earlier in this affidavit. I explained that it is urgent that this be fixed before February 28, 2022, the deadline that the Government had set for Ontario Health Card renewals. I proposed that the Government extend that deadline, if needed, to get enough time to fix this problem. It was clear that I was not just speaking about my own personal needs, but more broadly about a number of people in Ontario who have disabilities and do not have a drivers license.
62. I also explained at that virtual meeting that there should be some sort of route for people with no driver’s license and no Ontario Photo ID Card to renew their Health Card virtually, without having to go to ServiceOntario. I explained that this all raises serious human rights/equality disability concerns.
63. No one from the Government at that virtual meeting disputed the fact that a driver’s license is required to renew a Health Card online, or that this presents an obvious disability discriminatory barrier for people with disabilities like me who cannot have a drivers license. No one disputed that the Ontario Photo ID Card was created for people with disabilities like mine who do not or cannot have a driver’s license.
64. No one suggested to me that this was not a serious issue needing action. One of the deputy Ministers at that virtual meeting (whom I believe is the Deputy Minister of Government and Consumer Services) acknowledged the importance of getting this impediment resolved, and recognized its time sensitivity. For that reason, she asked if I would be willing to meet early the next week. I readily agreed to that request. However, the Government never arranged a meeting for that next week.
65. Four days later, on December 20, 2021, I wrote and made public a news release from the AODA Alliance on this issue. I widely circulated it to news organizations, to the AODA Alliance’s email distribution list, and to our followers on Twitter and Facebook. That day I also posted it on the AODA Alliance website at https://www.aodaalliance.org/whats-new/as-omicron-surges-ford-government-flagrantly-discriminates-against-many-ontarians-with-disabilities-in-access-to-health-care-by-requiring-a-drivers-license-to-renew-ontario-health-card-online/ Attached hereto and marked as Exhibit N is a true copy of that news release.
66. I emailed that news release to some or all of the public officials who attended that December 16, 2021 virtual meeting. I know from past experience and from feedback from various Government officials over the years that The Ontario Government regularly monitors the AODA Alliance’s email updates, web posts, social media posts and media coverage, and I was hoping to provide them with a concrete basis for reducing the barrier against those individuals who are insured for medical service through OHIP but who do not have a drivers license.
67. Very shortly after making it public, I was alerted by one of our supporters to an error in that December 20, 2021 AODA Alliance news release. It incorrectly makes it seem that one cannot renew one’s Ontario Photo ID Card online. I subsequently learned that one can renew an Ontario Photo ID Card online, and thereupon did so myself. I wrote a follow-up AODA Alliance Update which was sent out via email and posted online the next day, December 21, 2021 which corrected this error and apologized for it. Attached hereto and marked as Exhibit O is a true copy of that part of the AODA Alliance Update that corrects that error.
68. No one from the Ontario Government reached out to me to arrange a meeting the following week. When I heard nothing, I emailed the Deputy Minister for Seniors and Accessibility later during the week after the December 16, 2021 virtual meeting, to inquire. She responded that the Government wanted to defer a follow-up meeting with me to January 2022.
69. In an exchange of emails with the Government, I ultimately accepted a virtual meeting date of January 25, 2022. I was not happy with it being delayed at all, much less to so late a date in January. This is because the February 28, 2022 deadline was fast approaching. The Government did not agree to meet earlier. It was my understanding that they wanted more time to work on solutions.
70. On January 18, 2022, I received an email from Alison Drummond, Acting Assistant Deputy Minister for Seniors and Accessibility. On behalf of the Government she asked that the meeting planned for January 25, 2022 be pushed back to the following week. She offered to speak to me in the interim.
71. In a January 18, 2022 email to Ms. Drummond, a true copy of which is attached hereto and marked as Exhibit P, I objected to delaying that meeting due to the issue’s urgency.
72. As a result of an email exchange, I spoke with Ms. Drummond via Zoom on January 19, 2022. I thereafter sent her an email on January 19, 2022 that accurately sets out key contents of that discussion. Attached hereto and marked as Exhibit Q is a true copy of my January 19, 2022 email to Alison Drummond.
73. During that virtual meeting, among other things, Ms. Drummond read me a prepared text, which I have transcribed, as follows:
“The Ministry of Health’s eligibility requirements for Health Cards include stringent requirements for proof of identity and residency. In recognition of the complexity of the eligibility requirements, there is an opportunity to take a phased approach to expanded adult and child online Health Card renewals. In the short term, the Government is looking into expanding the ways that customers can confirm their identity and residency in Ontario, using their Ontario Photo Card as proof. Ontario Photo Cards can be renewed online, and it is estimated that allowing the use of the Ontario Photo Card to renew an Ontario Health Card would expand eligibility to approximately 750,000 individuals.”
74. During that virtual meeting, I responded that this passage told me little or nothing new, beyond what I had been told at the December 16, 2022 virtual meeting, a month earlier. Ms. Drummond did not dispute this.
75. During our January 19, 2022 virtual meeting, I told Ms. Drummond that it was my understanding that the changes to Ontario Health Card online renewal that we seek could be achieved without requiring the passage or amendment of any regulations. Ms. Drummond helpfully agreed to let me know if that was the Government’s understanding. She emailed me on January 24, 2022, confirming my understanding. Her email stated in material part:
“David, again I apologize for my delay, I had not forgotten that I promised you an answer on the specific question of whether the Government must enact regulations to take the steps you listed below, or whether in the Government’s understanding, these are measures that can be taken by the General Manager of OHIP or some other public officials, without needing a regulation to be enacted. I wanted to get back to you before our meeting tomorrow to say that you were right and I was wrong those measures can be taken by public officials without needing a regulation to be enacted.
As I understand it, there are some operational paths to officially extending the period beyond February 28, 2022 that would require a regulation; however, it could also be done without a regulation. I apologize for my misunderstanding.
76. Ms. Drummond later let me know via email that the January 25, 2022 virtual meeting would proceed as scheduled. That meeting took place for about 30 minutes, between 1:30 and 2 pm. Attending it with me were two volunteer Osgoode law students. Those attending for the Government included Alison Drummond, Acting Assistant Deputy Minister for Seniors and Accessibility, JoanneAnderson Assistant Deputy Minister of Government and Consumer Services (Acting) Operational Support Division, PaulineRyan Director|Health Insurance Branch from the Ministry of Health and Patrick Dicerni Assistant Deputy Minister of Health, Executive Officer & General Manager | OHIP, Pharmaceuticals and Devices Division (a respondent in this case) Others may have also been online for the Government. None of the deputy ministers who had attended the earlier December 16, 2022 virtual meeting with me attended this January 25, 2022 meeting.
77. At this January 25, 2022 virtual meeting, the respondent OHIP General Manager, Patrick Dicerni, and other Ontario Government officials told me for the first time that by May 2022, the Government will let people renew a Health Card online, using an Ontario Photo ID Card in lieu of a driver’s licence. I was also told for the first time that by early February 2022, the Government will establish a mail-in process to apply to renew an Ontario Health Card, using an Ontario Photo ID card in lieu of a driver’s licence.
78. I was also advised at this meeting for the first time that the Ontario Government will communicate to health care providers that after February 28, 2022, an expired Ontario Health Card remains valid for obtaining insured health services. However, I was told that it had been decided that the Government will not extend the February 28, 2022 deadline for renewing an expired Ontario Health Card. It had also been decided that the Government will not notify the public that individuals with an expired Ontario Health Card can continue to receive OHIP coverage for insured health services after February 28, 2022.
79. No reason was given for the Government deciding not to extend the February 28, 2022 deadline for renewing an expired Health Card and for not telling the public that an expired Health card can still be used after that date to obtain OHIP coverage for health services. I twice asked at this meeting for a reason. Those present for the Government said it was accurate for me to say that they had not provided a reason, after I had asked twice for a reason.
80. I responded at this meeting that as a result of the Government’s plan, people holding an expired Ontario Health Card and a valid Ontario Photo ID card will have no way to know that they can continue to present their expired Health Card and receive health care with OHIP coverage, after February 28, 2022. All they know is what the Government has publicly told them, which is the opposite. In their minds, this leaves in place the cruel choice of going to ServiceOntario and risking their health in order to renew their Health Card, or risk their health by losing OHIP coverage while their Health Card remains expired after February 28, 2022.
81. I told the Government officials at this meeting that a mail-in option, while an improvement for some, can present disability barriers for people whose disability does not enable them to complete such a form by themselves. I also alerted them that there is a real risk that some health care providers, or those working at their front desks, will not get the word from the Province that they are to continue to accept expired Ontario Health Cards after February 28, 2022. Up to now, they have only heard the opposite from the Government.
82. No one at this meeting disputed these points that I spontaneously raised in response to the news that they had just presented to me. No one denied that these are valid concerns. I was thanked for my input.
83. I was given no Government document at this meeting that sets out these policy changes regarding Health Card renewals. I have seen no public announcement of them.
84. After this meeting, I sent an email to Alison Drummond that set out the key points covered at this meeting. Attached hereto and marked as Exhibit R is a true text of that January 25, 2022 email to Alison Drummond. The email accurately sets out what happened at that meeting.
85. No one speaking for the Government has emailed me or otherwise contacted me to dispute the accuracy of the important facts and statements in any of my emails to them on this issue, with the exception of the information contained in Exhibit O, regarding the Governments requirement to have a driver’s license, but not a Photo ID, to be able to renew one’s Health Card online, and a couple of very minor matters that are not core to any of the matters to which I here depose. Similarly, no one from the Government has disputed the accuracy of the contents of the two news releases or indeed any AODA Alliance online posts or social media postings on this issue by me and/or the AODA Alliance.
86. I thereupon launched this application. On January 26, 2022, I made public a news release about it, the text of which is attached hereto and marked as Exhibit S to this my affidavit. It was emailed to the AODA Alliance email list and to our list of news organizations, posted on our website, and posted on Twitter, Facebook and LinkedIn. I also emailed it to several senior Government officials, including those who attended the January 25, 2022 virtual meeting with me.
87. It is the Ontario Government that itself issues both forms of photo identification. The Government has not disputed that the Ontario Photo ID Card was created to serve as a form of photo identification that is equivalent to the Ontario driver’s licence.
88. Moreover, if the Government’s concern was that they want an online confirmation that the person renewing their Ontario Health Card has in fact been resident in Ontario for a required period of time, the driver’s license is not proof of that, as far as I can tell. Someone could use their driver’s license to renew their Ontario Health Card online from anywhere in the world.
89. In short, the respondents and the Ontario Government have made no commitment to fully and effectively rectify this disability barrier before the February 28, 2022 deadline, referred to above. Urgency of this Issue
90. Until and unless the respondents either enable me, and persons in a similar situation, to renew an expired Ontario Health Card online using a valid Ontario Photo ID Card in lieu of a driver’s licence, or they publicly, unequivocally and effectively extend their February 28, 2022 deadline for renewing expired Ontario Health Cards, persons such as me may be subjected to an immediate, unfair, cruel danger of either suffering the loss of health insurance or exposing themselves to the health risk of attending a ServiceOntario office in person.
91. Even if the Government issues some sort of notification to health care providers that an expired Ontario Health Card is valid after February 28, 2022, I fear the real risk of encountering difficulties in getting insured health care services. I have no confidence that front-line staff at a doctor’s office or elsewhere are always kept informed up-to-the-minute. I would be left uncertain whenever I seek health services, including emergency services, that a particular staff member at a health care provider won’t think I am covered by OHIP. It will be easy for them to be confused by the mixed messages on this issue that will have come from the Ontario Government. This is especially so in the context of seeking health care during the pandemic. I fear encountering someone at the front desk who is filling in, because so many people have gotten sick during the latest wave of the pandemic.
92. I am also seriously concerned about members of the public who may fail to go to a health care provider for health services they need after February 28, 2022, because they have been led by the Government to think that their expired Ontario Health Card must be renewed before it can be accepted.
93. This is occurring at a time when the pandemic is nearing two years in duration, during its biggest surge, when hospital overloads are unprecedented, and when health care workers are suffering from the COVID-19 virus in deeply troubling numbers.
94. As it is, people with disabilities have faced too many disability barriers before the pandemic in Ontario’s health care system. I have had to spend an incredible amount of time during the pandemic advocating in a volunteer capacity for the AODA Alliance because of new disability barriers that the Ontario Government has created or failed to remove in access to health care during the pandemic, impeding patients with disabilities. I have received feedback from people with disabilities who for a range of reasons have been fearful about seeking out needed health care services during the pandemic.
95. Three years ago, on January 31, 2019, the Final Report of the Third Independent Review of the AODAs Implementation and Enforcement (the Onley Report) was released. The review was conducted by former Ontario Lieutenant Governor David Onley pursuant to the AODA.
96. The Onley Report is long, so I will not attach it. It can be found in full here: https://files.ontario.ca/seniors-accessibility-third-review-of-aoda-en-2019.pdf. However, the Onley Report provides a scathing indictment of the provincial governments failure to implement the AODA in a timely or effective manner, including noting that this province is mostly inaccessible and that progress has been highly selective and barely detectable.
97. On behalf of the Ontario Government, the Ontario Minister for Seniors and Accessibility Raymond Cho referred to Mr. Onley as having done a marvellous job on the Report while speaking about it in the legislature, when asked if he accepts the Reports findings. (See https://www.ola.org/en/legislative-business/house-documents/parliament-42/session-1/2019-04-10/hansard) In my own experience and based on feedback I have received from people with disabilities over the years, I agree with those findings in the Onley Report. Conclusion
98. I make this affidavit in support of my urgent application for judicial review regarding disability barriers to safely renewing an expired Ontario Health Card online, and for no other or improper purpose.
AFFIRMED REMOTELY before me in the city of Toronto, in the province of Ontario in accordance with Ontario Regulation 431/20 this 31st day of January 2022