>> Negotiating for a Community, not an Individual. Tips from Ontario Disability Accessibility Advocacy, David Lepofsky. Chair, Accessibility for Ontarians with Disabilities Act Alliance. Delivered at the Osgoode Hall Law School, January 21, 2014 as a Roy McMurtry Clinical Fellow.
>> Good morning everyone. My name's David Lepofsky. I'm speaking to you as chair of the Accessibility for Ontarians with Disabilities Act Alliance.

We are in non-profit, non-partisan unincorporated volunteer coalition of people with with disabilities and people without disabilities and community organizations. We've united to try to achieve a, a barrier free province in the province frontier for all people with disabilities. I've had the privilege of serving as first the co-chair and then the chair of it's prior coalition called the Ontarians with disabilities act committee from 1994 to 2005 when that coalition fought for and won.

The enactment of the Accessibility for Ontarians with Disabilities Act 2005. And since 2009 I've had the privilege of serving as the chair of the successor coalition, the AODA Alliance, whose mandate is to try to get that 2005 statute effectively implemented. I am not speaking in the capacity. I am speaking in my personal capacity and not on behalf of the government where I am employed by day.

What I'd like to talk to you about this morning, is not about the accessibility needs of people with disabilities, or what we've wanted in legislation. I am gonna be giving, giving other lectures on that and, and, and not about the long political campaign to get that legislation implemented so it's, it's a very interesting story and other lectures in this series will be available on that.

This is a a workshop or a seminar dealing with negotiations. And the negotiations you usually deal with are between individual parties and litigation. I wanna talk to you about what happens when you take that experience and transpose it into the process of trying to negotiate for, for a new legislation or regulations or policies.

What I wanna do is to first tell you just a little bit about the problem, people with disabilities face that lead us to want, led us to want new legislation. And to explain what the legislation is that we want because any of the negotiations and I talked to you about is anchored solely to that.

Lets get right into it. The problem. The social problem is this we have a lot of people with disabilities in our community a number over 1.7 or 1.8 million in Ontario, over four million across Canada. That's people with a physical or a sensory or a mental disability. I am blind.

My, my disability is a sensory one. Or people with intellectual disabilities, learning disabilities mental health issues and so on. And that number is growing, because the, the greatest cause of disability is aging. And our soc, our population getting older. That number understates the number of us, because everybody eventually gets a disability at some point in their life, as long as you live long enough or as someone near and dear to them who has a disability.

Ultimately, we are the minority of everyone. The problem that people with disabilities face, continue to face are barriers. Barriers that impede us from getting equal acces to an education, to a job, to public services like transportation. To private products and goods. Some of those barriers we face are physical.

Like, steps to get into a building. That impedes someone in a wheelchair, or walkers. Some of them are information barriers like the lack of Braille on an elevator button. Some of them are communication barriers. The lack of sign language in a hospital where needed in some cases. Some of the barriers we face are bureaucratic, some of them are legal.

Some are attitudinal. All these barriers are illegal. They violate the human rights code in Ontario or the Canadian human rights act, depending whether the organization is in federal or provincial jurisdiction and if it's a government agency provincial municipal school board and so on. They also violate the Canadian Charter of Rights and Freedoms, which guarantees.

Equality to people with disabilities or rather discrimination based on physical or mental disability. The way they were, these rights, historically were enforced is by individuals filing individual complaints. Either a complaint under the human rights code, or a lawsuit under the charter of rights. You had to fight them, one individual at a time, one barrier at a time.

Most people with disabilities don't have the time, the money and the wherewithal to fight those kind of battles. I know, cuz I had to fight one against the Toronto, not one, but two, against the Toronto Transit Commission personally, under the Human Rights Code. Successfully in the end, to force them to audibly announce all bus and subway and streetcar stops.

This led a number of us in two, in 1994 to decide we needed a new law that would get us to our goal of a barrier-free society without us having to litigate one barrier at a time. We still wanted to retain our rights, under the human rights codes under the charter rights.

But we want a law that made them a reality without us having to through individual cases, where ever possible. That was the case for the disabilities act. We won it in 2005. The law that was passed was called the Accessibility for Ontarians with Disabilities Act, the AODA. Let me briefly summarize what it provides because that will give you a framework for everything I'm gonna talk about in our next minutes together.

It requires Ontario to become fully accessible by 2025. By the way, it's the first equality seeking law I've seen in Canada or indeed in North America or anywhere that set a goal that with a fixed timeline. It requires the Ontario government to lead us there. Not to itself remove and prevent every barrier but to develop, enact, and enforce separate regulations called Accessibility Standards.

With input from the disability community. The public and private sectors, to detail sector by sector what must be done, and by when, to achieve full accessibility. That's the legal background. Let me jump into what becomes the subject of negotiation. What becomes the subject? There is several things. First, when we were campaigning for this law we were engaged in a extensive process of negotiating what the law would contain.

We were first promised this legislation in 1995 by the Provincial Conservative Party. Under Mike Harris as premier. He was the first premier who made such a promise. And we were involve in an effort to try to get them to keep that promise. In the end, in 2001, they passed a weak law.

We thought it was inadequate, called the Ontarians with Disabilities Act or ODA in 2001. In 2003, when the Dalton McGuinty Liberals were enacted, they had promised that they would make it pass a stronger law. And from 2003 to 2005 we were involved in a, a detailed negotiation process to lead to the law itself.

In another lecture in this series is a presentation on. The discussions or how we designed the ingredients of this law but I'm talking here today about the negotiation process. So one thing is just negotiated. What's in the law? After the law was passed in 2005 we've been involved in negotiations.

Over what will be included in individual accessibility standards. In another lecture in this series, I'll talk about what we've won under those standards, but I wanna talk to you about the process of, of trying to get them. We're also involved in negotiations over the implementation. After a standard is enacted, the government will develop and release.

A policy guideline, or other tools, educational supports, to help obligated organizations know what they gotta do. And we could be involved in negotiating what those contain as well. And finally, we could be involved in other kinds of negotiations over collateral issues beyond the substantive content of the law and the standards.

Over how it's enforced. Over what activities the government's doing on other fronts to achieve accessibility beyond simply devel, developing and acting and enforcing accessibility standards. So, there's a wide range of things that can become the subject of negotiation. So. What's odd about doing this? I can tell you, from my perspective as chair of my coalition, and as someone who is also a lawyer, there are several things that are odd or different compared to what you learn in this seminar.

About mediating or negotiating settlements of individual pieces of litigation between individual parties. The first is, I'm not playing lawyer. I am not the lawyer for my coalition. I am the chair, I'm the leader, or spokesperson. And so I, I'm stepping, I'm drawing on what I've learned through out my life including of course through my legal education and my work as a lawyer on how one negotiates.

But on actual legal issues, we get our proposals lawyered, because I, I'm not representing myself or holding myself like to be my coalition's lawyer. The second thing that's unusual is that, in a, in a conventional piece of mediation, there are clients, and if they have a lawyer, there's a specific client who can instruct.

Our coalition is unusual, because, we have a wide number of supporters. But we do everything in an informal way. And I'm gonna talk to you in a minute about how we do it. But it is not the kind of thing, like a private corporation or individual, where somebody is in control, someone is the directing mind, and they have the authority to go through whatever internal processes you have to.

To figure out what their position is. With us it's much more a morphism, I'm gonna tell you how we do that in a minute, in a couple minutes. The next thing that's unusual is that when you're doing mediation in the context of a lawsuit there's typically a court or a tribunal that can step in and decide the case if the mediation fails.

In our case there isn't. We are negotiating with the government who will talk to all sorts of others as well, to decide what they're gonna do but we don't have any recourse to any particular body to order them to do anything if we don't succeed. And finally, this process is not governed by a governing piece of legislation or a law.

Of course, the standards and the measures should comply with the Human Rights Code, and we can argue in the Charter of Rights and if they fall short we can point that out But, but the government has the power under the disabilities act to make accessibility standards that are weaker, than the requirements of human rights code in the charter or stronger.

We have a safeguard in the legislation, that if they pass the standard that is weaker than the requirements in the human rights code. It doesn't relieve an obligated organization for complying with the Human Rights Code, so we always retain our rights. But that alone, that, that, that's a safety net for us.

But we it's clear that we can't force them. To pass a standard that's stronger than than they, than they want to. The only recourse we have beyond that is of course, the political process. Which we use though we are non-partisan. In the end, in a piece of negotiation or mediation, you can end up with a settlement agreement that is binding and enforceable.

Of course, in the public in the public in the social justice advocacy world there is no such thing. There is at most we can say if they propose something we can say hey, if you do that we'll cheer, or if you do that we'll criticize and complain, we can encourage people to support what the government's done.

Or we can encourage people to oppose what the government's done. But beyond that, it's a negotiation process without the same notion at the end where you sign a binding settlement agreement as you would in a, in a case. So how do we do it? Let me talk to you about the practicalities of how we do it and then, what i'd like to conclude with is some of what, what I've learned.

Well, for each issue we've involved the, the first step is we have to figure out who had the final say. In a government that's not always easy. It's not easy because it depends on, on the way, because there may be more than one Cabinet minister involved, there may be more than one department of the government involved.

The government, and also within any of those, organizations, or ministry or, or a department of the government, there is the person who is on paper, described as the person in charge. But you may find out that in fact, the shots are being called from somewhere else. So there's a lot of work to be done, to figure out who you should negotiate with In contrast when mediation is done between a husband a wife in a divorce situation, they, they, they, the negotiations between the husband and the wife.

Right, i mean that, those are who you talk to, they each know who they have to ultimately resolve with. Excuse me what we then do, is we try to figure out what our position's going to be And we do this by, though email, and Twitter, and Facebook, and other means.

Public forums at times or, or informal discussions. We will ask our community for input. When we were coming forward with our proposals for the legislation back in the 90s, we held public forums all around the province to get input from people and collect ideas. But some kind of give us your feedback is part of the process.

Then what we now will do, or in recent years we'll do, is we will develop a draft brief, or draft proposal. For what we want. And we'll make it public. If you look at our website, our current website, aodaalliance.org or our predecessor coalitions website, odacommittee.net, you will see, a number of times, we'll say, please come give us your feedback on this draft brief.

Now, I, I wanna openly tell you. This is weird. Normally organizations will draft, put together a proposal privately, and secretly and they'll have back and forth, and they only wanna go public with the finished product, we don't. We, our laundry is out there, before it's washed, for all to see, and we found this to be a tremendously constructive process because in a coalition that has supporters all round the province.

Where we have no capacity to bring them all under one room and, and conduct an electronic or a balloted vote we need to give people an opportunity to read, review, and give us our ideas. And we get tremendous ideas from people People with, advanced degrees in subjects that we're dealing with.

People with no degree at all and no university training. But a whole heck of a lot of good ideas. We found that ideas win or lose on their own merits. Not based on the credentials of the person offering. So we get through that input and its interesting because the government will see the draft brief the same time our community will.

We have no secrets in that regard. Then we get feedback and then we try to incorporate it into a final brief and then we circulate it. And we make it public. Now, my coalition is not the, is not like a trade union that's the exclusive bargaining agent that, that the government must listen to and no one else.

We know that ultimately our arguments must be persuasive for the government but they got to be persuasive to our own community. So when we write our briefs we try to do it in a way that is persuasive, that makes the case to anyone reading it, a politician, a public servant, a member of our community, a journalist.

and, and then we will take that brief and we will make our pitch. There may be formal avenues for negotiation, like for presenting your case like standing committees of a legislature if it's bill before the legislature. Or public formal consultation meeting if the government convenes if it's developing an accessible standard.

But a lot of the negotiations will go on through informal meetings. With public servants at the front lines doing policy work with deputy ministers, assistant deputy ministers, with cabinet ministers, and even with the premier's office. And it's an ongoing exercise in persuasion. So, what have I learned, and what has my coalition learned, in terms of how to do this.

We're always learning. We're always learning. And it's a tremendous opportunity to keep trying things out and and and, and, and improving as you go. Well what have we learned? First thing that we've learned. is, you can't please everybody. So your best bet is not to go for unanimity, it's to go for harmony.

There's always gonna be someone out there who doesn't like what we propose. And that's fine, that's good! That's democracy. What we've learned is that we we should be ambitious, but practical. If I can draw on for those of you who are enamored with getting the yes by Fisher in the Harvard mediation project.

The old way of thinking this would be, we should go and ask for everything. We should ask for every building to be torn down tomorrow and rebuilt the next day to be fully accessible. And then the government will come back and offer us nothing and let's see if we can draw lines somewhere.

And the more we demand, the more we'll get when there's a compromise. Of course, all of you, if you get involved in learning about negotiations anywhere since the early 1980's when the Harvard negotiation project or mediation project figured out that, that's not such a clever thing. We've learned that positional bargaining's not a good idea.

Yes we should be ambitious but we've gotta ask for what's realistic and doable. Our ideas would be appealing not only to the disability community but to the business community. It should not only appeal to the public sector. Who have to implement them but to tax payers who got to pay for them.

And so we tried to get input from those other areas formally or informally we're always happy to get that kind of feedback so that we can make sure that we anticipate concerns that others will have and take them into account. We use an interesting yardstick when we put forward a proposal.

We want our proposals to be the kind that when you read them, you're gonna go, why the heck not? Or, why are you asking for more? Now that's not to say we're selling us short, but we want them to be so inherently attractive that people on the other side of the table will not be in a position to say, we can't tear down every building tomorrow, you're crazy.

But rather turn around by saying, but this is completely doable. Not only is this doable, but we could be asking for more. We're being reasonable. The other things that we've learned about is that mediation or negotiation in this context. Involves resort to different potential supports if you're not getting anywhere.

In the litigation process, the mediation breaks down, you always say look, we can agree or not, going the way I want to go. Let's go to court. A judge will do better for us or a tribunal will do better for us. What we've come to learn is of course because we don't have that, we've got to have access to backup to strengthen our case if mere persuasion isn't working.

Well that includes a, reaching out to individual members of the legislator. You will see, if you follow us on Twitter or read our emails. By the way, if somebody watching this video wants to Sign up for our Twitter feed. My personal one is @davidlepofsky, L-E-P-O-F-S-K-Y, and my coalition's is @AODAalliance, and email requests to get our emails can be sent to aodafeedback@gmail.com.

But anyway we will encourage people to go up there and individually advocate to individual members legislature we can't get you anywhere in the cabinet minister? We wanna put heat on within the cabinet within the caucus. We will appeal to the public. You'll see we have a number of guest columns and newspapers or media articles on our issues and we've had a number of editorial.

Support us. and, and specific things that we've, we've pressed for. And those are part of the pressure dynamic, or the persuasion dynamic that works in political process. We will approach opposition parties. We actually are non-partisan and therefore we'll talk to all parties. And, if we're in a position to go to the government by saying, look if you do X.

Both opposition parties agree so they're gonna hammer you if you don't and if you do they're not gonna be slamming you. You don't have to worry if you do x but they're gonna be out campaigning against you because you did x. So for us its, its very important to work with.

And gain support of opposition parties. There are times we use formal processes if you can getting a question asked in question period by an opposition member of the legislature to put public attention on something and that can trigger action. And the other avenue we have is our own community.

Well, I'm, I'm, I'm, I'm pleased and delighted that the hard work of my coalition from one end of the province to the other has won a lot of credibility and respect at the legislature and the queen's park. And within the journalistic community. We're not everybody, so when we put out a brief, we, we encourage people to not only like it.

But to write the government to, to endorse it and we'll say and, and what we will press for is public consultations to create a forum where others can come forward and raise their views. Now if they don't agree with us, that's fair and that's democracy, but if they do it provides a platform to show this isn't just one coalition.

That our voice is, is a louder one and a more it, it, it, covers a broader spectrum. So those are just some of the tools which you can bring to bear because you're not in a position to say, hey if you don't do X i, i, yeah, I'm a this mediation's over and I'm off to I'm off to court.

And the judges gonna make you do that. It's been a tremendous. Let me conclude by telling you this. I have constantly been heartened honored and delighted by the tremendous feedback we got on my briefs. By the great ideas we get from people, and from the number of people who will pick up on our ideas and carry them forward.

And add their own. I'm and and in the end, while in a lecture I'm gonna give on February 3rd I'll be documenting that. There's a long way we've gotta go and we're behind schedule for achieving full accessibility. These strategies, I believe, have been helpful in moving us considerably further ahead than the disability community would have been had we not undertaken these strategies over all of these 20 years.

Let me conclude this part of my presentation.