Ontarians push back against companies denying them access to ‘non-essential’ goods


Ontario residents are pushing back against big box and discount stores cutting off access to in-store items the province has deemed ‘non-essential’ as part of the the new COVID-19 stay-at-home measures.

They argue that many of those items are essential, especially for low-income households who can’t afford to buy supplies online or at pricier retailers.

“There are a lot of things people think are everyday essentials that are roped off and I think that’s a mistake that the government overlooked,” said Sarah Colero, a person whose income relies on the Ontario Disability Support Program.

Read more:
Here’s what Ontario’s big-box stores look like as new COVID-19 state of emergency takes effect

She claims the ODSP only provides her with just under $1,200 a month and she depends on stores like Dollarama to get her supplies.

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Colero claims Dollarama has closed off access to aisles with many supplies she needs and can’t afford to purchase elsewhere.

“Cleaning supplies, menstrual products, paper towels, tissues, tin foil,” she said. “I love Dollarama because everything there is a good price and that’s really what we need, because on ODSP, we have to budget so carefully.”

Read more:
Ontario sends provincewide stay-at-home emergency alert to cell phones, devices

Dollaramas across Toronto have signs outside stores listing items that the province had deemed ‘non-essential’ and it could no longer sell in-store, including supplies related to school, office, kitchen, hair accessories and closet and bathroom.

Dollarama also doesn’t allow for curbside pickup.

Ulisse Aiello is a caregiver to his brother with autism and said he desperately needs art supplies to keep his sibling occupied.

“He has the mentality of a five-year-old so you have to do a lot of things with him to keep him busy,” Aiello said.

Read more:
Ontario issuing stay-at-home order, declares 3rd state of emergency amid COVID-19 pandemic

Aiello adds that, with their budget, he can only afford art supplies at places like Dollarama and Walmart.

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“It’s not fair that you’re closing down sections of a store that are absolutely essential to many people,” he said. 

Meanwhile, many others took to Twitter to criticize Walmart for closing off areas of their stores, including some who claimed they were denied access to child supplies and diapers.

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Dr. Andrew Boozary suggests the government should be more flexible when it comes to what is deemed ‘essential’ and ‘non-essential,’ especially to those in marginalized and low-incomes communities.

“It’s a really tough line to draw between what is essential and non-essential,” said Boozary.

“We just have to listen to the community in things that they need, things that are essential through this stretch — because we really need to know that there’s that solidarity as to which kind of neighbourhoods are at risk and which neighbourhoods are going to have the least access to support and help.”

Read more:
COVID-19: Highlights of Ontario’s new measures as stay-at-home order set to take effect Thursday

In response to Global News’ request for a statement, Ontario’s ministry of health said the rules only allow big box and discount stores to sell certain items.

“These categories are limited to: grocery items, pet care supplies, household cleaning supplies, pharmaceutical items, health care items and personal care items,” said ministry of health spokesperson Alexandra Hilkene.

“Given the vast number of types of items that big box/discount retailers sell, the prescribed categories ensure that retailers have the flexibility needed to categorize all items sold,” she added.

“Should a big box/discount store wish to sell other items, they must comply with any applicable conditions that other retailers that sell those items comply with.”

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Click to play video: 'COVID-19: Ontario hospitals suspending non-emergency surgeries'







COVID-19: Ontario hospitals suspending non-emergency surgeries


COVID-19: Ontario hospitals suspending non-emergency surgeries

Meanwhile, a Dollarama spokesperson told Global News in a statement: “We are committed to maintaining this essential role while also adhering to evolving government orders in the face of a persistent virus.

“We moved quickly (Wednesday) following the announcement of new emergency measures effective (Thursday), and we sincerely thank all our customers for their patience and understanding in what continue to be extremely difficult circumstances for Canadians from all walks of life.”

“We thank our customers for their patience and understanding as we implement the new guidelines,” said Walmart Canada media relations representative, Adam Grachnik.

“In this case, diapers are permitted for sale in our stores.”





© 2021 Global News, a division of Corus Entertainment Inc.





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Please Write to the City of Toronto to Support the AODA Alliance‘s New, Comprehensive Brief on Why Toronto Should Not Lift the Ban on Electric Scooters


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

Please Write to the City of Toronto to Support the AODA Alliance‘s New, Comprehensive Brief on Why Toronto Should Not Lift the Ban on Electric Scooters

March 30, 2021

            SUMMARY

The AODA Alliance has just submitted a comprehensive brief to the City of Toronto showing why it must not lift the ban on electric scooters (e-scooters). This brief, set out below, brings together and supplements all the work we have done on this e-scooters issue over the past 19 months. We set the brief out below.

The brief begins with a pithy 3-page summary, for those who don’t have time to read it all. We encourage you or any community organization with which you are connected to email Toronto Mayor John Tory, any City Council member you think appropriate, and Toronto City staff. Tell them you support the AODA Alliance’s March 30, 2021 brief opposing e-scooters in Toronto.

Mayor Tory: [email protected] and you can email City staff by writing

City staff: [email protected]

For an easy-to-use online tool to email Mayor Tory and any City Council members you wish, provided courtesy of the March of Dimes of Canada, visit https://www.marchofdimes.ca/en-ca/aboutus/govtrelations/elections/Pages/escooters.aspx

Please quickly write Toronto. It is anticipated that this issue will come up again at the City of Toronto Infrastructure and Environment Committee on April 28, 2021. We will have more information for you in the coming days.

For more background on this issue, visit the AODA Alliance’s e-scooters web page.

Riding Electric Scooters in Toronto is Dangerous and Must Remain Banned – For Toronto To Allow E-scooters Would be to Knowingly Create New Disability Accessibility Barriers Against People with Disabilities

AODA Alliance brief to the City of Toronto

March 30, 2021

Mayor Tory and Toronto City Council must not unleash dangerous electric scooters in Toronto. Riding e-scooters in public places in Toronto is now banned. It remains banned unless Council legalizes them. The pressure to allow e-scooters is relentlessly being advanced by corporate lobbyists for the wealthy and well-financed e-scooter rental industry. Torontonians, including Torontonians with disabilities, need Mayor Tory and City Council to stand up to the corporate lobbyists, and to stand up for vulnerable people with disabilities, seniors, children and others whom e-scooters endanger.

The AODA Alliance submits this brief to the City of Toronto in opposition to the proposal to lift the ban on riding e-scooters in public places in Toronto. It should remain illegal for e-scooters to be ridden in public, whether on a rental e-scooter or a privately-owned e-scooter.

The non-partisan AODA Alliance has played a leading role in raising serious disability safety and accessibility concerns with e-scooters. To learn more about the AODA Alliance’s advocacy efforts to protect people with disabilities and others from the dangers that e-scooters pose, visit its e-scooters web page.

This issue will likely be on the agenda at the April 28, 2021 meeting of the Toronto Infrastructure and Environment committee. We ask City staff to incorporate this brief’s findings and recommendations in its forthcoming report to The Toronto Infrastructure and Environment Committee and the Toronto City Council as a whole.

 1. Summary of this Brief – Don’t Allow E-scooters in Toronto

Toronto should not lift the current ban on riding e-scooters in public places, whether permanently or for a pilot project. For Toronto to allow people to ride e-scooters, whether ones they own or rent, would knowingly and seriously endanger the safety of people with disabilities, seniors, children and others. It would knowingly create new accessibility barriers against people with disabilities. This would fly in the face of the Accessibility for Ontarians with Disabilities Act and the guarantees to people with disabilities in the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code. Here are key incontrovertible facts overwhelmingly established by objective City staff reports and by public feedback:

  1. Having been forewarned, for the City of Toronto to lift the ban on e-scooters in light of the dangers they pose, as documented in this brief, would expose the City to major claims for knowingly endangering Toronto’s residents and knowingly creating new accessibility barriers against persons with disabilities. For the City of Toronto to do so knowingly is the same as doing so intentionally.
  1. E-scooters will cause an increase in personal injuries, including serious personal injuries to innocent pedestrians and e-scooter riders, burdening Toronto’s overburdened hospital emergency rooms. E-scooters are a silent menace, ridden by unhelmetted, untrained, unlicensed and uninsured riders.
  1. If Toronto allows e-scooters, but bans them from sidewalks, experience in other cities shows for certain that e-scooters will nevertheless regularly be ridden on Toronto sidewalks. This endangers innocent pedestrians. Toronto lacks the law enforcement capacity to effectively police new rules regarding e-scooters, such as a ban on riding or parking them on sidewalks.
  1. If Toronto permits e-scooters, this will create new serious accessibility barriers impeding people with disabilities. This will happen especially in public places like sidewalks where they will be left strewn about, as in other cities that permit e-scooters. They will be a tripping hazard for blind people. They will block accessible paths of travel for people using wheelchairs. Toronto already has far too many accessibility barriers in public places such as sidewalks. E-scooters would make this even worse.
  1. Toronto City staff found no other city that has found an effective way to permit and regulate e-scooters and to effectively enforce those regulations.
  1. To lift the ban on e-scooters will invariably place new financial burdens on the taxpayer. The maximum amount cannot be quantified in advance. This will include added health care costs due to e-scooter injuries, cost of added infrastructure to accommodate e-scooters, added law enforcement costs, added regulatory and monitoring costs, and other liabilities triggered by e-scooters.
  1. Toronto’s mayor and City Council have received strong united opposition to e-scooters from the disability community, reflecting the needs of vulnerable people with disabilities ,seniors and children. This includes two successive compelling unanimous resolutions against e-scooters by the Toronto Accessibility Advisory Committee, strong opposition by many respected disability community organizations, passionate deputations against e-scooters by every person with a disability presenting to City Council committees that have invited deputations on this topic, and emails and phone calls to the mayor and City Council members from many people with disabilities and their supporters.
  1. On July 28, 2020, City Council directed City staff to research disability community concerns with e-scooters. City staff’s research further validated and documented disability community concerns with e-scooters. City staff explored options for addressing these concerns and found that there are no workable solutions that are safe and that avoid the creation of new accessibility barriers. The e-scooter rental industry’s proposed solutions would impose significant cost burdens on the public. They would not effectively solve these public safety and disability accessibility concerns.
  1. It is disturbing that on July 28, 2020, almost half of City Council voted to oppose City Staff conducting research on disability concerns with e-scooters. Had those dissenting Council members succeeded, the important new information that City staff has revealed would never have come to light, to the serious detriment of people with disabilities.
  1. In disregard of these serious dangers, a relentless push for e-scooters in Toronto is mounted by corporate lobbyists for the Canadian arm of international e-scooter rental companies such as Lime and Bird. They unleashed an extensive, well-financed and well-connected lobbying feeding frenzy at City Hall. Some City Council members told the AODA Alliance that this is one of the biggest, if not the biggest corporate lobbying blitz now underway at City Hall. An AODA Alliance report documented that between June 2018 and October 2020, the e-scooter corporate lobbyists had fully 1,384 contacts at City Hall, including 94 with the mayor’s office.
  1. Substantially eviscerating their credibility on this issue, this brief documents that the e-scooter corporate lobbyists have made a number of false, exaggerated, misleading and/or transparently meritless claims to support their pressure for Toronto to lift the ban on e-scooters and let them expand their market. If Toronto allows e-scooters, the e-scooter rental companies will be laughing all the way to the bank, while members of the public, including vulnerable people with disabilities, seniors and children, will be sobbing all the way to the hospital.
  1. The e-scooter corporate lobbyists’ entire campaign is based on the erroneous assertion that rental e-scooters will significantly reduce traffic and pollution, because instead of driving, people will take public transit, and then rent an e-scooter to ride the last mile to their destinations. Yet data from City staff and from the corporate lobbyists themselves shows that the vast majority of e-scooter rides are NOT taken to connect to public transit. They thus won’t reduce traffic or pollution. Indeed a proportion of e-scooter renters use an e-scooter instead of walking or taking public transit. Moreover, for e-scooters to be effective for this “last mile”, Toronto must be inundated with thousands of e-scooters, so one is available whenever a rider wants one. This exacerbates city clutter and disability barriers.
  1. The public use of e-scooters in Toronto should remain banned in any form, whether privately owned the by the rider, or rented e.g. through a shared e-scooter program. The AODA Alliance opposes any e-scooter rental program, whether run by the e-scooter rental companies directly or by the City of Toronto e.g. through its Bike Share program.
  1. The AODA Alliance agrees with the Toronto Accessibility Advisory Committee, which called on City law enforcement to enforce the current ban on e-scooters. If someone now illegally rides an e-scooter, City Council should mandate law enforcement to confiscate that e-scooter.
  1. The fact that Toronto earlier approved some other shared economy activities, like Uber ride sharing, should not mean the e-scooter corporate lobbyists get a free pass here. Any prior approval of ride-sharing, for example, did not take into account the dangers that e-scooters pose. Each shared economy proposal should be assessed on its own strengths and dangers. Rejecting e-scooters does not preclude City Council from approving other shared economic activities, where it adjudges them safe and appropriate.
  1. We seek the leadership of Toronto Mayor John Tory. We need him and all City Council to stand up for people with disabilities, seniors, children and others endangered by e-scooters. We need Mayor Tory and City Council to stand up to the e-scooter corporate lobbyists.

 2. The Proof is Overwhelming – E-Scooters Endanger Personal Safety and Accessibility for People with Disabilities, Seniors, Children and Others.

Overwhelming evidence shows that allowing e-scooters in Toronto will endanger the safety of the public, including vulnerable people with disabilities, seniors, children and others. They will also create new accessibility barriers in a city that is already full of too many disability barriers.

 a)Two Strong Resolutions of the Toronto Accessibility Advisory Committee

These concerns are strongly supported by two unanimous motions of the Toronto Accessibility Advisory Committee. Those resolutions were passed on February 3, 2020 and February 25, 2021. The latter reads:

“The Toronto Accessibility Advisory Committee communicate to the Infrastructure and Environment Committee and City Council, for consideration with the next staff report on electric kick scooters, that:

  1. The Committee does not support the use of any electric kick-scooters (e-scooters) in the City of Toronto; and request that a ban prohibiting their use in all public space remain in place without any exceptions, as they:
  2. create a general safety hazard in the public realm for all Toronto residents;
  3. add further barriers for the elderly and persons living with disabilities;
  4. are poorly enforced when illegally used due to insufficient enforcement resources;
  5. further encumber pre-existing inadequate infrastructure.
  6. The Committee recommends that City Council request the Toronto Police Services Board, the General Manager, Transportation Services, and the Executive Director, Municipal Licensing and Standards to consult with accessibility stakeholders to:
  7. develop a public education campaign to effectively convey the existing by-laws on the prohibition of e-scooters use in all public spaces;
  8. actively scale up city-wide enforcement of the by-law prohibiting use of e-scooters in all public spaces.”

It is especially important for Toronto Mayor John Tory and City Council to pay heed to these unanimous strong resolutions. This is because the Accessibility for Ontarians with Disabilities Act (AODA) requires cities like Toronto to create such municipal accessibility advisory committees. They exist in order to alert municipal governments to important areas where priority action is needed on accessibility for people with disabilities. This includes, among other things, action needed to prevent the creation of new accessibility barriers. If a municipal government creates a new accessibility barrier after it was warned not to do so by its accessibility advisory committee, that government will be acting in a deliberate, intentional and harmful way, contrary to the AODA’s goal.

 b) Media Coverage Objectively Documents Serious Harms Caused by E-scooters

Here is a sampling of media coverage objectively documenting the harms and injuries that e-scooters can cause.

*E-scooter hit-and-run crash leaves pedestrian, 65, seriously injured in hospital in Greater Manchester, UK

*Woman left with brain injury after being hit by e-scooter when getting off bus in Auckland court hears

*Six e-scooter riders before courts for intoxicated riding – UK pilots

*According to the Edmonton Journal, in Edmonton 94 percent said they saw e-scooters used on sidewalks, 68% said more enforcement needed.

*The Washington Post reported on January 11, 2019 that a 75-year-old man in San Diego tripped over an e-scooter. He was taken to hospital, “where X-rays revealed his knee was shattered in four places”. The article quotes Wally Ghurabi, medical director of the Nethercutt Emergency Center at the UCLA Medical Center in Santa Monica. Ghurabi said, “I’ve seen pedestrians injured by scooters with broken hips, multiple bone fractures, broken ribs and joint injuries and soft tissue injuries like lacerations and deep abrasions.” The article also reports incidents involving pedestrians in Dallas, where a 32-year-old man was “left with scrapes on his knee and face, as well as a deep gash above his right eye that required seven stitches”, and Cincinnati, where a 44-year-old woman incurred approximately $1000 in medical expenses after being “throw [n]…to the ground” — both following collisions with e-scooters.

*Euronews reported on June 18, 2019, that Paris intended to implement speed limits and parking restrictions for e-scooters following its “first death on an electric scooter”. The French transport minister also announced a nationwide ban on e-scooters on sidewalks, effective September. A week prior to the announcements, a 25-year-old man riding an e-scooter had died after being hit by a truck. The report details other incidents, involving both riders and bystanders. In Sweden, “a 27-year-old man died in a crash while riding one of the electric vehicles in May”. In Barcelona, “a 92-year-old woman died in August 2018 after she was run over by an e-scooter — making it the first case of a pedestrian being killed by the electric vehicle”.

*On July 26, 2019, CBC News reported that since e-scooters became available in Calgary, “Calgary emergency rooms have seen 60 patients with e-scooter-related injuries”. The report added that “[a] bout a third of them were fractures and roughly 10 per cent were injuries to the face and head”. These figures have triggered a study by the University of Calgary.

*The Guardian reported on August 11, 2019 that Paris had experienced its third e-scooter-related death in four months: “A 30-year-old man has been killed after being hit by a motorbike while riding his e-scooter on a French motorway.” The report went on to state that “ [t] he scooter rider was not wearing a helmet and was reportedly travelling in the fast lane when the motorbike hit him from behind”, despite the fact that “[u] sing scooters on motorways is banned in France”. Moreover, “The day before the accident, a 27-year-old woman suffered serious head injuries after falling from an e-scooter she was using in a cycle lane in Lyon. A few days earlier a 41-year-old man had been seriously injured after falling from his e-scooter in Lille.” Finally, the report provided details on another, earlier e-scooter-related death in France: “An 81-year-old man died after he was reportedly knocked over by an e-scooter in Levallois-Perret, a Parisian suburb, in April.”

*CityNews reported on August 13, 2019, as part of a short survey of European regulations, that “German police say seven people have been seriously injured and 27 suffered minor injuries in scooter accidents since mid-June, saying most were due to riders behaving carelessly.”

*In Austin, an article from 2019 states that almost half of the 190 e-scooter injuries in a three-month period were injuries to the head and 15 percent were traumatic brain injuries. Less than 1 percent of injured riders were wearing helmets.

*In San Antonio, wheelchair users complain of e-scooters being left on sidewalks and ramps; these present a danger to individuals who rely on wheelchairs for mobility. The article notes that the e-scooters create profound obstacles for disabled people who are simply trying to get to work or run daily errands.

 

*An article entitled “Sharing the sidewalk: A case of E-scooter related pedestrian injury” published in the American Journal of Emergency Medicine in June 2019 cites multiple studies corroborating the occurrence of pedestrian injuries: one from Israel found that, while pedestrians were 8.4% of the patients admitted for e-bike- and e-scooter-related injuries, they “were more severely injured; compared to electric scooter riders and electric bike riders, pedestrians have higher rates of head, face, and neck injuries; traumatic brain injuries; and hospital stays lasting more than a week”.

 c) Major Disability Organizations Unite in Opposition to Allowing E-Scooters

An impressive number of respected community organizations have voiced the same safety and accessibility concerns especially for people with disabilities and seniors. They have called for e-scooters not to be allowed. A January 22, 2020 Open letter in opposition to e-scooters in Ontario cities like Toronto has been co-signed or endorsed by the Accessibility for Ontarians with Disabilities Act Alliance, March of Dimes of Canada, the Canadian National Institute for the Blind, the ARCH Disability Law Centre, Spinal Cord Injury Ontario, the Ontario Autism Coalition, the Older Women’s Network, the Alliance for Equality of Blind Canadians, Guide Dog Users of Canada, Views for the Visually Impaired, Citizens With Disabilities – Ontario and Canadians with Disabilities of B’nai Brith Canada.

 d) All deputants with Disabilities Addressing City of Toronto Committees on E-scooters Raise Serious Safety and Accessibility Objections

Safety and accessibility concerns led every deputant with disabilities and their supporters, speaking at City of Toronto Committee meetings on this issue, to insist that e-scooters must not be allowed in Toronto. This was the unanimous message from all people with disabilities and their supporters who have addressed the Toronto Accessibility Advisory Committee on February 3, 2020 or February 25, 2021, and who addressed the Toronto Infrastructure and Environment Committee on July 9, 2020.

For example, at the February 25, 2021 Toronto Accessibility Advisory Committee meeting, a very long meeting for that Committee, Disability presenters at the meeting were unanimous in voicing total opposition to e-scooters in any form or on any basis in Toronto. John Rae, a blind person over the age of 70, spoke for the Alliance for Equality of Blind Canadians. He described e-scooters as an e-menace to people with disabilities and seniors. He said that any deployment or testing of e-scooters would be a new disability barrier, flying in the face of the Accessibility for Ontarians with Disabilities Act. He said Toronto, including its sidewalks, have been becoming less accessible to persons with vision loss. E-scooters will make this worse. This is an issue of pedestrian safety.

Edward Rice, speaking for B’nai Brith Canada, showed disturbing pictures from Fort Lauderdale Florida, where from a year before, when in a two block area, there were fully 25 e-scooters strewn about the sidewalk. He uses a mobility device. He had to ask strangers to move these out of the way so he could travel on the sidewalk. He called this “embarrassing and humiliating”.

John Mosa, Melanie Marsden and Andrea Hatala together spoke for the GTA Disability Coalition, a network of different disability organizations. They, like Mr. Rice, cited a study of increased emergency room visits in Calgary due to e-scooter use. In Toronto this would compound the discrimination which people with disabilities risk in hospital during COVID-19 due to the Ontario Government’s critical care triage protocol. They identified the barriers to people with disabilities that e-scooters pose, because they are silent and can be difficult to avoid, and because they can be a tripping hazard and mobility barrier on sidewalks. They endorsed the AODA Alliance’s call for e-scooters to be banned, for there to be no e-scooter pilot, and for police to enforce the ban on e-scooters against those now riding them.

Jennifer Griffith, a blind woman who uses a guide dog, described Toronto as an increasingly dangerous and inaccessible city. Her example of dangers are construction sites in the city that she has to try to safely navigate through or around. She described the fear she would face each time she goes out in public if she faces the danger of silent e-scooters injuring her. She would not have heard of a proposal for an e-scooter pilot, had it not been for the AODA Alliance.

Ron Redham is a 60 year old person with a disability who lives in Etobicoke and walks with canes. Having gradually learned how to use canes after having to use a wheelchair, He asked Toronto not to send him and others back on the rehabilitation burdens that he had to go through. He doesn’t want to end up in a wheelchair again. He said in Montreal, 80% of scooters were parked illegally, resulting in them littering the downtown. This led to an early cancellation of their pilot project.

Paul Michaels is from B’nai Brith Canada, a national human rights organization. He has two family members with cerebral palsy. They asked him to share with the Committee their fear that they could not readily maneuver out of the path of an oncoming e-scooter or around a group of e-scooters.

Adam Cahoon said he gets hateful looks when he uses his power wheelchair at full speed, around 8 KPH or so. He said e-scooter scan go over double his speed, making him feel especially vulnerable.

On February 25, 2021, several members of the Toronto Accessibility Advisory Committee also described serious safety and accessibility dangers that e-scooters pose for people with disabilities. For example, a member of Toronto Accessibility Advisory Committee said that deafblind persons would be especially vulnerable.

 e) Toronto City Staff Confirm the Safety Dangers and New Accessibility Barriers that E-Scooters Would Create in Toronto

Two written City staff reports confirm that e-scooters endanger public safety, including safety for vulnerable people with disabilities, seniors, children and others. They will also create new disability accessibility barriers, even if banned on sidewalks. This is confirmed in the City staff’s June 24, 2020 report to the Toronto Infrastructure and Environment Committee, and the City staff’s February 25, 2021 presentation to the Toronto Accessibility Advisory Committee.

The City staff’s June 24, 2020 report to the City’s Infrastructure and Environment Committee included these findings:

* “E-scooters pose a risk to people with disabilities due to their faster speeds and lack of noise. Cities that have allowed e-scooters have observed a high incidence of sidewalk riding by riders, whether permitted or not on sidewalks. Parked e-scooters, especially when part of a dockless sharing system, can pose trip hazards and obstacles. Seniors, people with disabilities, and those with socio-economic challenges could face negative outcomes if injured in a collision or fall. Solutions to enforcement and compliance are still in their infancy.”

* “Vision Zero Road Safety – Risks with E-scooters

The City has a Vision Zero commitment to eliminate serious injuries and fatalities resulting from roadway crashes, particularly around six emphasis areas including pedestrians, school children, and older adults. Replacing car trips with e-scooter trips presents an opportunity to address some road safety issues if e-scooters produce a net safety benefit, especially for these groups. A 2020 International Transport Forum study notes that the risk of hospital admission may be higher for e-scooter riders than for cyclists, but that there are too few studies to draw firm conclusions. While not comprehensive, the emerging evidence of the health impacts associated with e-scooter use warrants a cautious approach to mitigate risks to e-scooter riders, pedestrians, and the City. Some of the findings are below.

New e-scooters users are most likely to be injured with 63 per cent of injuries occurring within the first nine times using an e-scooter. (CDC and City of Austin).

A comparison of serious injury rates between Calgary’s 2019 shared e-scooter pilot and Bike Share Toronto suggests riding a shared e-scooter is potentially about 350 times more likely to result in a serious injury than riding a shared bike on a per km basis, and about 100 times more likely on a per trip basis. This includes a limited sample size, differing definitions for serious injuries, different city contexts (e.g., Calgary allowed e-scooter riding on sidewalks, whereas bicycle riding is not allowed on sidewalks in Toronto) and serious injuries may decline over time as people gain experience riding e-scooters. (Montréal reported few e-scooter injuries for its 2019 pilot, however, it is unclear whether and how data for serious injuries was gathered.) Calculations are based on: 33 ER visits requiring ambulance transport over three months (Jul to Sep 2019) in Calgary for e-scooter-related injuries with a reported 750,000 trips, and average trip length of 0.9km; and 2,439,000 trips for Bike Share Toronto, with 3km average trip length, over 12 months in 2019, and no serious injuries (e.g., broken bones, head trauma, hospitalization) but attributing one for comparison purposes. Further data collection and studies of injuries are needed on a per km basis, by type of trip (i.e., recreational versus commuting, facility type), and by injury type.

The fatality rate for shared e-scooter users is potentially nine to 18 times the rate of bike share-related deaths in the U.S., based on a news report in the Chicagoreader.

Head trauma was reported in nearly one third of all e-scooter-related injuries in the U.S. from 2014 to 2018 – more than twice the rate of head injuries to bicyclists. In a City of Austin study in 2018 over three months, 48 per cent of e-scooter riders who were hurt had head injuries (91 out of 190), with 15 per cent (28 riders) experiencing more serious traumatic brain injuries.

Falling off e-scooters was the cause of 80 per cent of injuries (183 riders); 20 per cent (45 riders) had collided with a vehicle or an object, according to a 2019 UCLA study of two hospital ERs in one year. Just over eight per cent of the injuries were to pedestrians injured as a result of e-scooters (11 hit by an e-scooter, 5 tripped over a parked e-scooter, and 5 were attempting to move an e-scooter not in use).

Hospital data will be key to track injuries and fatalities by type and severity, especially for incidents where no motor vehicle has been involved (e.g., losing control) or for a trip and fall involving improperly parked e-scooters. As an ICD-10 code (international standard injury reporting code) specific to e-scooters will not be implemented in Canada until at least spring 2021, a reliable method to track serious e-scooter related injuries and fatalities presenting at hospitals is currently not available.”

* “Other cities have suspended e-scooter sharing services until after COVID-19 (e.g., Windsor approved a shared e-scooter pilot in April 2020, but has now deferred its pilot until after COVID-19). Prior to the pandemic, a number of jurisdictions (e.g., Boulder, Honolulu, and Houston) had refused to allow or banned the use of e-scooters due to public safety concerns. Key cities with similar population, urban form, and/or climate have not yet piloted e-scooters such as New York City (Manhattan/New York County ban), Philadelphia, and Sydney, Australia.”

* “While staff have considered a potential e-scooter pilot on ActiveTO major road closures, it would pose risks to vulnerable road users and leave the City open to considerable liability and risk due to lack of resources for oversight, education and enforcement at this time. A key purpose of ActiveTO is to provide a mixed use space for physical activity for people of all ages for walking, jogging and human-powered cycling. Piloting a new vehicle type that is throttle-powered and can potentially exceed speeds of 24km/hr poses risks to vulnerable road users in such conditions. It could also lead to confusion about which infrastructure or facilities under ActiveTO are permissible, and this would pose public safety risks that the City does not have resources to manage at this time.”

* “Finally, the risk of injury for new users is high, and could put additional burden on local hospitals and paramedics at this time. For the reasons above, City staff do not recommend permitting e-scooters in ActiveTO facilities in 2020.”

* “If Council were to permit e-scooters to be operated on City streets – without the commensurate resources to provide oversight, education, outreach and enforcement, there would be considerable risks to public safety for e-scooter riders and other vulnerable road users; additional burden on hospitals and paramedics; impacts on accessibility, community nuisance and complaints; impacts on current initiatives to enhance the public realm for COVID-19 recovery efforts, such as CurbTO and CaféTO; and liability and costs to the City. For the reasons above, staff recommend that personal use of e-scooters not be considered until 2021.”

* “Accessibility for Ontarians with Disabilities Act (AODA)

Persons with disabilities and seniors have considerable concerns about sidewalk and crosswalk interactions with e-scooter users, as well as concerns regarding trip hazards and obstructions from poorly parked or excessive amounts of e-scooters. The Toronto Accessibility Advisory Committee, a body required under the AODA, recommends that City Council prohibit the use of e-scooters in public spaces, including sidewalks and roads. In other jurisdictions outside of Ontario, some legal action has been undertaken against municipalities by persons injured as a result of e-scooter sidewalk obstructions, as well as by persons with disabilities.“

After City Council directed City staff on July 28, 2020 to do further research on the disability concerns regarding e-scooters, City staff did further research. This further research reinforced the public safety and accessibility concerns addressed above. None of the City staff’s new information refuted or reduced the concerns about the dangers that e-scooters present as raised by disability advocates and others. The City staff’s further research did not support a conclusion that these concerns have been or could be effectively eliminated.

The City staff’s February 25, 2021 presentation to the Toronto Accessibility Advisory Committee included

* “According to the UDV (German Insurers Accident Research) in January 2021, e-scooter riders are 4 times more (or 400% more) likely than bicyclists to injure others, due to e-scooters being illegally ridden on sidewalks.

–     In 21% of e-scooter incidents with personal injury, the victim is not the rider, but another road user. This is due in part to e-scooters being ridden on sidewalks 60% of the time when they should be on the road or bike lane.

According to Austria’s Kuratorium für Verkehrssicherheit (KFV) in October 2020, 34% of 573 e-scooter riders observed at several Vienna locations illegally rode on the sidewalk.

–     Even if there was a bike path, 23 percent preferred the sidewalk. If there was only one cycle or multi-purpose lane, 46 percent rode on the sidewalk. If there was no cycling infrastructure, 49 percent rolled illegally on the sidewalk.”

* “Canadian context – City of Calgary

  • No bike share. Only rental e-scooters allowed in Alberta.
  • Allows e-scooter riding on sidewalks.
  • 43% of 311 requests about bad behaviour or conflicts with pedestrians; 42% parking concerns. (total of 769 requests over the pilot period)
  • Now allowing e-scooter use on some roads to reduce sidewalk riding issues. Added slow speed zones and 30 parking zones (2.5% of riders ended trips in parking zones; 10% of the e-scooter fleet was deployed to the parking zones).
  • E-scooters to return via the procurement process. Lowered fleet cap from 2,800 (2020) to 1,500 (2021). Will require licence plates for enforcement.
  • “Likely that e-scooters have the highest rate of injury per transportation mode” but less severe. 43% of EMS e-scooter injuries required surgery (double that of EMS bicycles at 21%). 37% of severe e-scooter injuries had suspected intoxication.
  • 1,300 e-Scooter-related ER visits during the pilot period but may be over-inclusive of other devices referred to as scooters. 75 required ambulance transport, 5% were pedestrians injured.

Canadian context – City of Ottawa

  • No bike share. Personal use and rental e-scooters allowed on roads with max 50km/h limit, bike lanes, and trails/paths that are not National Capital Commission multi-use paths.
  • Lowered max. speed to 20km/hr for e-scooters from the permitted 24km/hr under the provincial pilot. 8km/hr for slow zones, e.g., transit malls/stations.
  • Piloted a fleet of 600 e-scooters with 3 vendors in 2020. Will increase the fleet cap to between 1,200 and 1,500 for 2021 and expand outside the Greenbelt (suburban area).
  • 76% of e-scooter riders surveyed used e-scooters for recreation; 2% to connect to transit (COVID-19 context)
  • Will pilot in 2021 via procurement process. Staff labour costs not included in cost-recovery. Considering designated parking areas. 69% of all survey respondents reported encountering improperly parked e-scooters.
  • No injury data collection with hospitals and not likely for 2021 given the pandemic.
  • Accessibility stakeholders were consulted and raised concerns about sidewalk riding and improper parking, especially barriers for persons with low vision or no vision.”

Despite all the overwhelming evidence that demonstrates e-scooters ‘dangers, the two lead e-scooter rental companies, Bird and Lime, together have campaigned for e-scooters in Toronto in effect as if none of that evidence is true. For example, Bird tried to convey an impression that e-scooters pose no additional danger to public safety, if allowed, and are simply the same as bikes. This defies logic. Unlike bikes, an e-scooter, ridden for the very first time by an utterly inexperienced rider, can silently race faster than 20 kph in seconds, powered by an onboard motor. The faster a vehicle’s speed on impact with an innocent pedestrian, the greater the force applied, and the risk of consequential injury.

Lime has made even more exaggerated claims. It repeatedly told the February 25, 2021 Toronto Accessibility Advisory Committee meeting that rental e-scooters, if allowed, will improve public safety, stating:

“The OECD says in their widely, the most extensive report in the world on micro-mobility that road users will be safer, all road users, if e-scooter and bicycle trips replace travel by car or motorcycle.”

Lime would thus have Toronto believe that the public is at greater danger now, because e-scooters are not allowed. To support this extreme claim, Lime in substance argued that cars are more dangerous to pedestrians than are e-scooters. Is it just a coincidence that this claim serves the economic interests of the e-scooter corporate lobbyists in getting as many e-scooters on the road as possible, claiming in effect that the more e-scooters that are deployed, the safer we all will be?

Of course, cars are much bigger and heavier than e-scooters. They can go much faster than e-scooters. As such, a car can cause greater injuries when it hits a pedestrian.

Lime’s claim rests on fatally flawed premises. First, no one is contemplating banning cars from the road, and replacing them with e-scooters. Second, cars, unlike e-scooters, are not routinely driven on sidewalks, where pedestrians expect and deserve to be able to walk in safety, unthreatened by any motor vehicles. Third, as addressed further below, in cities where e-scooters are allowed, they have not been proven to materially reduce the amount of car traffic on the road.

At the February 25, 2021 Toronto Accessibility Advisory Committee meeting, the City got a unique opportunity to assess the clash between City staff who say that e-scooters create new safety dangers on the one hand, and e-scooter corporate lobbyists who claim that e-scooters will improve public safety, on the other. Committee members asked both e-scooter corporate lobbyists and City staff to address the clash in the data that each relied upon.

When the answers of City staff and the e-scooter corporate lobbyists are assessed together, the only plausible conclusion is to reject the corporate lobbyists’ claims that e-scooters improve public safety, rather than endangering public safety. City Council is strongly encouraged to prefer the City staff findings. This is so in light of the fact that City staff, acting in the tradition of professional public servants, have provided unimpeachable objective data. In sharp contrast, the e-scooter corporate lobbyists’s have a strong economic motive to exaggerate their claims. As is further documented later in this brief, they also have a disturbing track record of false, exaggerated and misleading claims that brings their credibility into question.

Lime Canada conceded that if a city council saw the information about the impact of e-scooters that City staff presented at the February 25, 2021 Toronto Accessibility Advisory Committee meeting, they would vote against e-scooters. Lime also conceded at that meeting that the highest priority risk areas are parking compliance, compliance with not riding on sidewalks, and riding while intoxicated. We emphasize that all those three areas bear directly on creation of new safety dangers and disability accessibility barriers.

Despite those major admissions, to support its claims that e-scooters will improve public safety rather than endangering it, Lime and Bird referred a report from the International Transport Forum ITF of the OECD at the same Toronto Accessibility Advisory Committee meeting. However, City staff correctly pointed out several critical features of that report that controvert the corporate lobbyists’ reliance on and claims about it.

First, that report, which the corporate lobbyists called an “OECD report”, was not in fact endorsed or approved by the OECD. To the contrary, it is labelled as a Corporate Partnership Board Report. City staff explained that the corporate partnership board includes e-scooter manufacturers and e-scooter rental companies. The report includes a pivotal disclaimer that:

“Funding for this work has been provided by the ITF Corporate Partnership Board” and “It has not been subject to the scrutiny of ITF or OECD member countries and does not necessarily reflect their official views or those of the members of the Corporate Partnership Board.”

Second, Bird claimed that the International Transport Forum of the OECD had concluded that a road fatality is not significantly more likely when using a shared standing e-scooter rather than a bicycle, and that the risk of an emergency department visit for an e-scooter rider is similar to that for cyclists. In response, City staff explained that on page 10 and 20 of the report, it says that the hospital rate may be higher for e-scooters, that hospital admissions related to e-scooter incidents may be higher. It is clear that the report does not prove or support the e-scooter corporate lobbyists’ claims about it. When City staff met with the e-scooter rental industry on January 20, 2021, City staff were very clear in stating that they do not consider, given the research seen, that that the risk profile of e-scooters is merely the same as bikes.

 3. E-scooters Won’t Materially Reduce Road Traffic, Pollution or Climate Change

E-scooter corporate lobbyists make unsubstantiated claims that to allow e-scooters would materially reduce road traffic and combat pollution and climate change. This lies at the heart of their argument in favour of Toronto permitting e-scooters. For example, Lime told the Toronto Accessibility Advisory Committee on February 25, 2021 that e-scooters can save “a ton of car trips”. It turns out that these claims are untrue.

The corporate lobbyists argue that e-scooters would reduce traffic on the roads and reduce pollution because instead of taking a car to their destination, they would ride public transit to get near their destination, and then rent an e-scooter to ride the last mile from transit to their destination, or to ride the first mile from their destination back to public transit. Eviscerating this claim is the fact that most e-scooter renters do not use e-scooters to connect to transit. The February 25, 2021 City staff presentation to the Toronto Accessibility Advisory Committee indicated that in the Ottawa fall 2020 e-scooter pilot, a survey revealed that only 2% of e-scooter riders did so to connect to public transit. As well, the City staff’s June 24, 2020 report to the Toronto Infrastructure and Environment Committee showed that e-scooters are not mainly used to replace car trips:

“While some mode shift from driving to using an e-scooter has occurred in other cities, the majority of e-scooter trips would have been by walking or public transit (around 60% for Calgary and Portland; and 86% in Greater Paris). For example, 55 per cent would have walked instead of using an e-scooter (Calgary). From a Paris area survey, 44 per cent would have walked, 30 per cent would have used public transit, and 12 per cent would have used a bicycle/shared bike; while this study noted that e-scooters had no impact on car equipment reduction, an extrapolation would assume that 14 per cent would have used a car/ridehail/taxi, which still represents a minor shift away from motorized vehicular use.”

Even Lime’s presentation that day only claimed that 20% of their trips are connections to transit. Therefore, fully 80% of e-scooter rides are not for that purpose, even on the most generous statistical claims from the e-scooter industry.

Making this worse, the corporate lobbyists’ claims supporting e-scooters would require Toronto to be flooded with e-scooters. For e-scooters to serve their supposed benefit as a means to connect to public transit in lieu of car rides, people would have to be assured before they leave home that there will always be an e-scooter waiting for them to rent, conveniently available as soon as they get off public transit, to ride that last mile to their destination. Similarly, When they leave their destination to go back home, they’d need an assurance that there would be a rental -scooter waiting for them right there, available ride the first mile back to transit on their way home.

There would therefore have to be a huge number of e-scooters scattered all over Toronto, just in case someone wants to rent them. Short of that, a person has no assurance that they can rely on this mode of travel. Without that assurance, they won’t know if they can get to their destination on time.

At the February 25, 2021 Toronto Accessibility Advisory Committee meeting, City staff and the e-scooter corporate lobbyists’ presentations, together, show without contradiction that the e-scooter companies do not prefer having e-scooters parked at fixed docking stations, such as those now allocated for Bike Share bikes. Rather, they prefer for a rider to be able to leave an e-scooter on Toronto’s sidewalks, tied to a fixed object. City staff told the February 25, 2021 Toronto Accessibility Advisory Committee meeting that docking stations have the advantage of reducing the tripping hazards, sidewalk clutter and accessibility barriers that are created when e-scooters are parked on the sidewalk.

City staff explained that Bike Share corrals are typically 500 meters apart. The e-scooter corporate lobbyists want e-scooters to be within as little as 300 meters to each other. No doubt, this is because the closer be the e-scooter is to a potential renter or market, the more likely the customer is to opt for their product. Of course, the bigger the flood of e-scooters scattered around Toronto, the better it is for the e-scooter industry’s profits. However, this also makes the new barriers against people with disabilities and the safety dangers to them even more prolific.

This all means that there must be a massive urban blight of e-scooters, akin to that seen in some other cities, for this supposed benefit of reduced traffic and pollution to work. So speculative a benefit is hardly worth the proven harms e-scooters cause.

 4. Allowing E-scooters Would Impose Significant New Financial Burdens on the Taxpayer

City staff reports amply support the inevitable conclusion that to lift the ban on e-scooters in Toronto would impose significant but as-yet unquantifiable financial burdens on the taxpayer. This includes among other things, health care and litigation costs arising from personal injuries caused by e-scooters, the cost of creating and maintaining infrastructure to accommodate e-scooters, the cost of enforcing the laws regulating e-scooters if enacted, the cost of City regulating e-scooters, collecting data and monitoring e-scooter use and e-scooter companies. At the February 25, 2021 Toronto Accessibility Advisory Committee meeting, City staff reported that The City’s insurance and risk management people believe that there would be significant costs to the City if a pilot were to be held. The costs to the City of allowing e-scooters would include costs of claims, cost of police enforcement, cost of City Transportation staff dealing with litter issues enforcement, the cost of City data collection and the cost of staff monitoring and providing oversight. Insurance and risk management is finding it difficult to come up with a specific dollar amount for these costs. This resoundingly disproves the e-scooter corporate lobbyists’ false claims at the July 9, 2020 Toronto Infrastructure and Environment Committee that there would be no additional costs to the City.

COVID-19 has already imposed massive new costs on Toronto, and on Ontario. Toronto is in no position to suffer these added new additional e-scooter costs. If Toronto can afford to spend more now on Toronto’s infrastructure and environment, it should be spent to reduce the many accessibility barriers facing people with disabilities. It should not be spent to create new disability barriers, as e-scooters would cause.

The June 24, 2020 City staff report to the Infrastructure and Environment Committee found:

“There is a significant risk that the City may be held partially or fully liable for damages if e-scooter riders or other parties are injured. Transportation Services staff consulted with the City’s Insurance and Risk Management office (I&RM) to understand the magnitude of the City’s liability if allowing e-scooters. At this time, loss data is lacking on e-scooters due to generally lengthy settlement times for bodily injury claims. The City has significant liability exposure, however, due to joint and several liability, as the City may have to pay an entire judgement or claim even if only found to be 1 per cent at fault for an incident. The City has a $5M deductible per occurrence, which means the City will be responsible for all costs below that amount. In terms of costs, Transportation Services staff will also be required to investigate and serve in the discovery process for claims.

E-scooter sharing/rental companies typically require a rider to sign a waiver, placing the onus of compensating injured parties on the rider. Riders are left financially exposed due to a lack of insurance coverage and if unable to pay, municipalities will be looked to for compensation (e.g., in settlements and courts). Claims related to e-scooter malfunction have been reported by the media (such as in Atlanta, Auckland, New Zealand and Brisbane, Australia). In 2019, a Grand Jury faulted the City of San Diego for inadequate regulation and enforcement of e-scooter sharing companies. By opting in to the Pilot, the City will be exposed to claims associated with improperly parked e-scooters as evidenced by lawsuits filed by persons with disabilities and those injured by e-scooter obstructions (such as in Minneapolis and Santa Monica, California).”

Beyond the foregoing, the City of Toronto could expose itself to major damages claims if people get injured by e-scooters. As amply documented throughout this brief and on the AODA Alliance’s e-scooters web page, Toronto has ample basis to know that e-scooters present proven safety and disability accessibility dangers. For Toronto to expose Torontonians to e-scooters once it has been alerted to these dangers, injured parties can be expected to claim greater damages. This is because Toronto thereby knowingly endangered its residents and knowingly created new disability accessibility barriers. The City could not credibly defend itself by claiming that it had no idea that it was creating these dangers by allowing e-scooters at the behest of the e-scooter corporate lobbyists.

 5. No Effective Insurance Solutions Are Now Available

It has been a fundamental requirement of public policy for decades that the public should be assured that there is sufficient insurance in place to cover those who are injured by motor vehicles. That is why driving a car without proper insurance is an offence.

This is an issue which has not been solved for e-scooters, a form of motor vehicle. The City staff’s June 24,2020 report included:

“This report also recommends the need for improved industry standards at the provincial and federal levels for greater consumer protection in the purchase and/or use of e-scooters. While staff are aware that e-scooters are being considered as an open-air transportation option, the absence of improved standards and available insurance for e-scooter riders, coupled with lack of enforcement resources, would risk the safety of riders and the public on the City’s streets and sidewalks, especially for people with disabilities.”

The City staff’s February 25, 2021 presentation to the Toronto Accessibility Advisory Committee said that there would be a need for insurance to cover injuries both to the e-scooter rider and an injured pedestrian. We would add that there would also be a need for insurance to cover damage to property due to e-scooter use, and injuries and property loss due to motor vehicle accidents caused by e-scooter use e.g. if a car needs to swerve to avoid an e-scooter, and ends up in a collision causing personal injuries, death and/or property loss.

The City staff February 25, 2021 presentation concluded in substance that no acceptable insurance solutions for the needs that the City staff identified are now established. Solutions that the industry proposed are not sufficient. For example, the industry proposed that a fund be established to cover losses due to e-scooters. City staff were not satisfied that revenues from a fee to be imposed on each e-scooter ride could cover the funds needed for claims and for the infrastructure that would have to be set up to administer such a new claims fund.

We add that whatever be worked out regarding insurance, the e-scooter rental companies should be assigned first and primary liability for any injuries or losses that are caused to anyone by the use of their vehicles. If they want to make their product available in Toronto, in order to make profits, they should shoulder the costs that are caused to others by the use of their product.

In Ontario, a car’s owner is primarily liable for injuries or losses caused by the car, and not just the driver. There is no reason to exempt the e-scooter rental companies from that wise approach. Otherwise, it gives a massive undeserved financial windfall for the e-scooter rental companies.

In the end, insurance, even if properly available, does not eliminate or reduce the dangers to the public including people with disabilities, seniors, children or others. It presupposes that members of the public will be injured by e-scooters. They will have to shoulder the hardships and high costs of bringing law suits to recover damages. Money can help, but cannot eliminate the physical pain, the loss of abilities, and the other hardships that a serious personal injury and civil litigation can inflict. It would be wrong to proceed on the basis that so long as there is sufficient insurance in place, there is no need to worry about the dangers to safety and disability accessibility that e-scooters will create.

At the February 25, 2021 Toronto Accessibility Advisory Committee meeting, Bird complained that third party e-scooter insurance does not exist in North America, that it is not required anywhere else in North America, and that it is not mandated or provided for Bike Share TO. Yet these provide no reason for dismissing insurance issues addressed here, or the need for there to be proper insurance in place. It just gives another compelling reason why Toronto should not lift the ban on e-scooters.

 6. A Pilot with E-Scooters in Toronto Would Endangers Public Safety and Disability Accessibility, and Exposes The City to Major Financial Claims

There are times where it is worthwhile for the City of Toronto to conduct a pilot project with an innovation, to see if it is suitable for wider adoption. However, Toronto should not conduct a pilot project with e-scooters. There are a number of reasons for this. Each, standing alone, is sufficient to reject that idea. Rejecting a pilot here does not mean Toronto is rejecting the idea of ever conducting pilots in other areas of policy that do not present e-scooters’ dangers.

It is essential to expose why e-scooter corporate lobbyists press so hard for a pilot. They do so purely for tactical marketing reasons. They want their product on the Toronto streets, to build their market. They want to shift the burden to those opposing e-scooters to have to fight an uphill battle to get e-scooters removed, once entrenched. They want the inertia to favour them. They want the City to invest money in their product’s entrenchment, so it will be easier to secure a permanent foothold in this city. They want to point to Toronto to leverage other cities to follow suit.

First, there is no real need for an e-scooter pilot in Toronto. No one has identified an appropriate purpose for an e-scooter pilot. A pilot is conducted to answer specific questions, identified in advance. If the pilot is to ascertain if some people would like to ride e-scooters, we know from other cities that they do. If it is to find out if e-scooters will ride on sidewalks even if banned from sidewalks, we have ample evidence that they do. Indeed we already have first-hand proof that e-scooters are freely and openly ridden on Toronto sidewalks even when they are entirely illegal in Toronto.

If the question to be considered is weather e-scooters endanger public safety and disability accessibility, we have sufficient proof from other cities that they do. There is nothing about Toronto or Torontonians that make these dangers any less than for other cities that have allowed e-scooters. To the contrary, City staff’s June 24, 2020 report shows ways in which Toronto presents added problems, if e-scooters are allowed here. It concluded:

“In addition to the experiences in other jurisdictions, several risk factors are unique to the City of Toronto and play a role in informing the recommended approach to e-scooters:

Streetcar tracks: Toronto has an extensive track network (177 linear kilometres) which poses a hazard to e-scooter riders due to the vehicle’s small wheel diameter.

Winter and State-Of-Good-Repair: Toronto experiences freezing and thawing that impacts the state-of-good-repair for roads. A large portion of roads are 40 to 50 years old, with 43 per cent of Major Roads and 24 per cent of Local Roads in poor condition. Coupled with lack of standards for e-scooter wheels (e.g., traction, size), this makes this particular device more sensitive to uneven road surfaces.

High construction activity: In addition to the city’s various infrastructure projects, Toronto has been one of the fastest growing cities with about 120 development construction sites in 2019.

Narrow sidewalks and high pedestrian mode shares in the Downtown Core and City Centres: Most jurisdictions experienced illegal sidewalk riding by e-scooter users, with some business districts saying e-scooters deterred patrons from visiting their previously pedestrian-friendly main streets. This is especially challenging with physical distancing requirements and other COVID-19 recovery programs expanding the use of the City’s sidewalks and boulevards.”

Second, it is universally accepted that it is utterly wrong to conduct an experiment on human beings without their consent. This is especially so where it is known in advance that the experiment poses a danger to them. Imagine the liability that a government would risk if it subjected people to a trial COVID-19 vaccine without their consent, to find out if it works and if it has any dangerous side-effects.

An Toronto e-scooter pilot would be a human experiment without the consent of those endangered by it. This is revealed by the City staff’s presentation at the February 25, 2021 Toronto Accessibility Advisory Committee meeting. For purposes of gathering data on injuries caused by e-scooters, City staff spoke of collecting data from hospitals before a pilot, during a pilot and after a pilot. City staff explained that the burdens on hospitals during the COVID-19 pandemic precluded their being able to gather the kind of data needed before an e-scooter pilot could begin.

Toronto should not follow Ottawa’s reckless conduct. Ottawa conducted a pilot project with e-scooters right in the midst of the COVID-19 pandemic, without putting in place effective measures for tracking injuries. The Ottawa mayor’s office told AODA Alliance Chair David Lepofsky on the night before the pilot’s approval that if people get injured, they can file complaints. Ottawa unfairly shifted the burden to e-scooter victims to produce evidence of harm they suffered, rather than proactively preventing the harm in advance or ensuring that it is accurately tracked during that pilot.

In these circumstances, if Toronto conducts an e-scooter pilot, it risks facing major financial claims by people injured by e-scooters. As noted earlier, injured victims can be expected to argue, as a factor substantially increasing their right to a large damage award that the City of Toronto decided to subject them to the dangers of an e-scooter human experiment without their consent, having been warned in advance of the safety and accessibility dangers that e-scooters create. That claim for damages would be fortified by the fact that the Toronto Accessibility Advisory Committee twice unanimously recommended against conducting a pilot project with e-scooters, after receiving compelling evidence from multiple sources on the safety and accessibility dangers they pose.

Third, the City staff’s June 24, 2020 report shows that in important ways, the proper legal and operational groundwork has not been done at the provincial or federal level, needed for a pilot project. That report concluded:

* “Although the HTA sets out some e-scooter standards, such as maximum speed and power wattage, due to the nature of urban and suburban conditions such as Toronto’s, City staff recommend that the Province strengthen the device standards for greater rider safety. Based on an extensive literature review, items recommended for further Provincial exploration include a maximum turning radius, a platform surface grip, wheel characteristics (e.g., minimum size, traction, tire width), braking and suspension.

In addition, the Province has not established set fine amounts for offences under the HTA e-scooter regulations. Without this in place, for the police to lay a charge in respect of a violation, a “Part III Summons” is required, which means the police must attend court for each charge laid regardless of severity, and a trial is required for a conviction and fine to be set. This may make it less likely that charges are laid. Fines outside of ones the City could set (e.g. e-scooter parking violations, illegal sidewalk riding) would create workload challenges for Police and courts.

In spite of the Pilot requirement to collect data, there is currently no vehicle type for e-scooters in the Ministry of Transportation’s (MTO) Motor Vehicle Collision Report (MVCR) template used by all police services to report collisions. Unless the Province specifies e-scooters are motor vehicles for the purposes of collision reporting, and has a field for this in its template, e-scooter collisions may not be reported reliably and meaningful collision data analysis will not be possible. In Fall 2019, City staff requested that the MTO add e-scooters as a separate vehicle type, but MTO has not yet communicated they would make this change.”

If Toronto wishes to gather still more information about e-scooters, it should do so without conducting its own pilot experiment on Torontonians, by looking to the personal injuries and disability accessibility barriers that e-scooters created in other cities.

 7. E-Scooter Corporate Lobbyists Have Proposed No Effective Solutions that Will Solve the Problems E-scooters Would Create

City Council will want to know if there are “compromises” i.e. solutions that could allow e-scooters while not making Torontonians suffer from their dangers. The AODA Alliance urges that Toronto should not “compromise” on the safety of its residents. Especially during COVID-19, our political leaders have emphasized that public safety is their number one priority. That should be the case here as well. Compromising on accessibility for people with disabilities should be out of the question, especially when it comes to the danger of creating new accessibility barriers that would compound the many barriers that people with disabilities now suffer from in Toronto.

That said, the question remains whether there are solutions that would not compromise on public safety or on the impermissible creation of new accessibility barriers. City staff commendably gave the e-scooter corporate lobbyists an ample open opportunity to present practical solutions to the dangers that e-scooters create, if such solutions exist. City staff held a meeting with 29 representatives of the e-scooter rental companies on January 20, 2021. E-scooter corporate lobbyists also had the chance to bring solutions to the Toronto Accessibility Advisory Committee on February 25, 2021.

e-scooter companies have a strong financial incentive to present workable solutions. This would open up the highly-desirable Toronto market to them. They are well –positioned to try out effective solutions elsewhere, if there are any. This is because they operate e-scooter rental operations in a number of other cities.

Those companies are well-aware of their need to come up with solutions. The disability community has been raising our disability-related concerns regarding e-scooters for over a year and a half. Such concerns have been raised in other cities.

Despite these opportunities, e-scooter corporate lobbyists presented no solutions that would in fact solve the serious dangers that e-scooters pose. The February 2021 written staff report and the staff oral presentation on February 25, 2021 to the Toronto Accessibility Advisory Committee reviewed key solutions that the e-scooter corporate lobbyists presented to City staff. City staff correctly concluded that none effectively solved the problems that e-scooters present, but impose costs on the taxpayer. The February 25, 2021 City staff presentation stated:

“”Potential solutions to address e-scooter sidewalk riding

  • Protected bike lane/micromobility network and placing e-scooter parking on-street so that trips begin/end off the sidewalk
  • Field staff/ambassadors/patrols and enforcement teams
  • Visible, unique identifiable plate numbers (licence plates for rental fleets)
  • E-scooter sidewalk riding detection technologies* (*emerging technology)

Other proposals to address e-scooter sidewalk riding

  • Geofencing pedestrian areas or slow zones
  • Education and warnings (by companies) and fines for riders (by police)
  • Suspensions/bans on repeat offenders (by companies)
  • Decals on sidewalks and signage
  • Audible warnings on the device for the rider and pedestrians

Potential solutions to address improper e-scooter parking

  • Adequate supply of parking areas (and fleet size caps/reviews)
  • Proper parking verification (photo selfies and/or other technologies)
  • Field staff/patrols and enforcement teams (1-2 hr service standards or better)
  • Braille/tactile and unique identifiable numbers on e-scooters (licence plates for rental fleets)
  • Docked stations* like Bike Share Toronto (*dockless preferred or hybrid by companies)

Other proposals for improper e-scooter parking

  • Education and incentives (e.g., discounts for proper parking or penalties for repeat offenders by companies; or fines to the companies that are passed onto the repeat offenders)
  • “Lock-to” parking mechanism (similar to a bicycle lock)
  • Double kick-stand (less likely to topple over); and
  • Onboard diagnostics indicating the device has toppled over.
  • Photo of e-scooter being locked to a hand railing at steps to an entrance by a man wearing a bicycle helmet and business casual work clothes.
  • Photo of e-scooter locked to bicycle parking with a cable. The bike parking is in the shape of a metal loop attached to the sidewalk in San Francisco with a bike lane painted green in the background.”

The City staff’s February 25, 2021 presentation also stated:

“Accessibility Feedback on Proposed Solutions…

Technologies are still emerging and not adequate yet:

  • Geofencing and other technologies to prevent sidewalk riding are not sophisticated enough and would only apply to rental e-scooters.
  • Docking stations for e-scooters has potential but is still in development.
  • Lock-to cables on e-scooters mean they could be locked anywhere (e.g., café fence/railing) including in spots blocking entrance access and paths of travel.
  • There is already a lack of bike parking so this would worsen the number of sidewalk obstructions on narrow and cluttered sidewalks.
  • If Bike Share Toronto were dockless, there would not be enough bike rings to lock the rental fleet… same for dockless rental e-scooter fleets.

Accessibility Feedback on Proposed Solutions

Not enough city resources for enforcement and infrastructure priorities

  • Oversight is very labour- and resource-intensive and depends on enforcement, which is already stretched or non-existent in parts of the City.
  • Licence plates on rental e-scooter fleets could help, but this is a reactive tool and would be a drain on city resources to monitor and enforce.
  • Bigger priorities for limited city resources.
  • Inadequate infrastructure is a bigger priority – not enough sidewalk space or accessible infrastructure; not enough bike lanes/bike lane space; and not enough public transit.
  • Importance of other city priorities before allowing something which poses a hazard and a nuisance for pedestrians and persons with disabilities.

Accessibility Feedback on Proposed Solutions

Impacts on seniors and persons with disabilities on sidewalks

  • COVID-19 has resulted in challenges for persons with disabilities, their caregivers and pedestrians who use sidewalks as a necessity and not for recreation.
  • Allowing e-scooters will pose hazards that affect persons with disabilities, seniors, their caregivers and pedestrians.
  • Risk of severe injury for seniors or persons with disabilities if tripping and falling or struck by an e-scooter.
  • Inability to identify e-scooter rider because of their speed, and that the person’s credit card on the app may not be the person riding the e-scooter.”

The e-scooter corporate lobbyists presented no information that refuted the City staff assessment of these solutions. None of the information presented by City staff either in its February 2021 report or their February 25, 2021 oral presentation to the Toronto Accessibility Advisory Committee demonstrated any need to subject Torontonians to these dangers in a “pilot project” to see if they would materialize in Toronto. No information was presented to suggest that Toronto would somehow be exempt from these dangers, if it allows e-scooters.

We add the following, which reinforces the City staff’s presentation. Toronto has bike lanes, but it is not a contained network. Moreover, extensive law enforcement would be needed to ensure compliance. Both creating the network and such law enforcement imposes substantial costs on the public. The public should not be required to build massive new infrastructure to let the e-scooter corporate lobbyists make their profits.

At most such bike paths are described as helpful as encouraging e-scooter riders not to ride on sidewalks. Yet such “encouragement” is no assurance that they will comply.

City staff reported that a proposed solution was to use technology such as “geo-fencing” to prevent e-scooters from riding on sidewalks. Using GPS or other technology, the e-scooter itself would supposedly electronically detect when it is going somewhere where it is not allowed to go. City staff correctly concluded that the technology to do this accurately and reliably simply does not exist. We agree. We add that anyone who uses a GPS for directions know that they are not accurate enough to pinpoint whether an e-scooter is on the sidewalk, or mere inches away on the road.

Even if geo-fencing did work, it would only restrict rented e-scooters and not privately owned e-scooters. Yet both rented and privately-owned e-scooters create dangers to people with disabilities.

Lime said that such sidewalk detection technology could help with reminding riders afterwards. The e-scooter rental company could call the offending rider afterwards. Including those with multiple cases of it. This wrongly relies on e-scooter companies with a conflict of interest to lead this activity. It only addresses the problem after the danger has been created, rather than preventing barriers from being created in the first place. Waiting for multiple infractions does not protect the public from one-time riders. This all presumes without proof that the e-scooter companies can effectively track this.

Another proposal from the industry was to have staff educate e-scooter riders. If these staff are to be provided by the City, that would be an unwarranted cost burden on the taxpayer. Even if these staff were to be provided by the e-scooter companies, there would be no realistic possibility of them being situated all over the city to ensure that they reach all or even most e-scooter riders. E-scooter riders would have no obligation to spend time listening to them. There is no assurance that this education would reach many e-scooter riders, or that it would change their behaviour.

The industry’s proposal to require a visible identifiable number to be located on each e-scooter can be partially helpful. However that alone will not materially reduce the problems we have identified.

If an e-scooter rider violates the law, it is not conclusive proof of the rider’s identity to identify the number on the e-scooter, even if a victim can accurately identify that number. The e-scooter companies would have to make available to the public their internal records of rentals, account holders and vehicle numbers. Moreover, the e-scooter rider may not be the same person as the name on the account charged for the e-scooter. This alone would not be sufficient assured proof in court to establish the rider’s identity.

This is also no solution for pedestrians who see a law-breaking e-scooter from the side or from behind, or where the e-scooter is racing too quickly for the pedestrian to read the identification number. Moreover, offending e-scooter riders will quickly learn to cover up the identification number. This solution also depends on the public financing enough law enforcement to catch and successfully prosecute offenders.

Another measure proposed was to add braille and tactile letters to an e-scooter, to enable a person with vision loss to identify it. This presupposes that a person with vision loss trips over an improperly parked e-scooter, and then gropes all over it to find an accessible braille or raised letter identifier. That in turn presupposes that the victim knows that such labels are available, and is prepared to try this groping. This is, far fetched. It also leaves people with vision loss exposed to the e-scooter tripping hazard in the first place.

Lime Canada proposed to the Toronto Accessibility Advisory Committee on February 25, 2021 that E-scooter rental companies could require renters to photograph how they park an e-scooter, and send the photo to the rental company for monitoring. This provides no real public protection. The renter could move the e-scooter right after sending in that photograph.

Similarly, it would be problematic to rely on rental companies to impose or collect fines. This would lack needed law enforcement public accountability and safeguards. The public would have to trust the e-scooter companies. Law enforcement should never be parcelled out to a private for-profit company that has such an obvious conflict of interest. Moreover, if the fine is retained by the e-scooter company, that would simply add to their profits.

The industry proposed that they could suspend multiple violators from being able to rent an e-scooter. However, this requires the many serious impediments to proving a violation and a violator’s identity to first be overcome, e.g. the need for massive increases in law enforcement to detect violators. Moreover, a suspended person could simply use a new credit card to create a new account and then resume riding e-scooters.

The industry’s proposal to increase law enforcement would shift more financial burdens to the taxpayer. It also presupposes that if Toronto were to increase its law enforcement spending, e-scooters should be a top priority. We would suggest that there are now other law enforcement priorities that would compete for attention, e.g. ensuring that the public obeys public social distancing requirements during the pandemic.

At the February 25, 2021 Toronto Accessibility Advisory Committee meeting, Lime conceded that drunk e-scooter riding will require an “enforcement component”. It said there are “some tech tools that some of the companies would come up with to help identify an impaired e-scooter driver. The industry could then deny the intoxicated rider a ride. There is no suggestion that this intoxication technology exists, or that it has been effectively deployed anywhere

The industry proposed that it could message riders regarding restrictions on e-scooter use. This assumes that voluntary compliance would be sufficient. There is no indication that this has been tried and worked in other cities. We would not dispense with drivers licenses and the related training in exchange for car companies messaging their customers on where they are permitted to drive their cars.

The industry proposed that sidewalks could be marked with notifications not to ride e-scooters there. City staff correctly noted that this would create visual clutter. There are many kilometers of sidewalks that would require this. We add that here again, the e-scooter corporate lobbyists once again propose shifting major costs to the taxpayer to enable them to make their profits. It also presupposes that those who illegally would ride e-scooters on sidewalks only do so because they didn’t know it is forbidden, rather than because they don’t have to fear effective law enforcement.

City staff rejected a proposal that e-scooters emit an audible sound. We note that this measure may help somewhat in overcoming the dangers of e-scooters due to their now being silent. However, this would not overcome the dangers when e-scooters are lying on the sidewalk, blocking pedestrians, nor would this prevent injuries when collisions occur. Moreover, these sounds would have to be loud enough to alert a pedestrian well in advance, so that they can try to evade a fast-moving e-scooter racing towards them.

City staff noted that the industry proposed that e-scooter parking be located on the street, to reduce the chances of them being ridden on the sidewalk. We note that with street parking now at a premium, especially in downtown Toronto where the traffic is often congested, there are harms that would flow from further reducing street parking. From a disability perspective, if any new street parking were to be re-allocated, it should be for more disability parking spots, and not for e-scooters.

Moreover, by having e-scooters parked on the street, this would not in any real way reduce the danger of e-scooters being ridden on the sidewalk. An e-scooter rider could simply continue to ride on the sidewalk and then at the end of their ride, park on the street, if permitted.

To address the problems of parking e-scooters, the industry proposed, among other things, providing them with more e-scooter parking locations. This impinges on limited parking spaces already available in Toronto, as noted above. It also shifts yet another cost to the taxpayer, who would be providing free parking for the corporate lobbyists to make their profit.

The option of providing docking stations was discussed. It burdens the taxpayer with providing the space and paying for the docking stations. It adds to urban clutter.

The industry proposed technology to ensure that e-scooters are parked properly. Yet unless there is a huge supply of staff to monitor this, it will not prevent danger to people with disabilities and others before injuries and accessibility barriers impede people with disabilities.

The industry proposed having a patrol team from e-scooter companies to explore and remedy complaints. City staff said that where tried, the minimum service standard has been one to two hours after a violation is reported by the public, especially during a pilot project. We respond that that leaves the danger to pedestrians in place, and only rectifies it after the fact. It also unfairly burdens pedestrians with having to call in complaints, and indeed, with having to know how to do so and at what number. That depends on a chain of events that is not reliable.

Consideration was given for e-scooter companies to provide rate incentives for those who park properly, such as discounts, or rate penalties for those who do not park them properly. That requires someone to effectively police where each e-scooter is parked. The option of fining the e-scooter company directly for improperly parking the e-scooter raised the concern that the e-scooter company could just pass this cost on to the users, rather than it serving to ensure proper parking of e-scooters. Here again, this presupposes that there is the deployment of ample law enforcement deployed all over the city that has time to conduct all the needed enforcement for e-scooters.

At the February 25, 2021 Toronto Accessibility Advisory Committee meeting, industry representatives gave major priority to the solution of “lock-to”. A cable is attached to the e-scooter so that when parked, it can be locked to a pole or other object. However, this is no solution at all. It still exposes people with disabilities to e-scooters being left all over the place in unpredictable public locations, as new accessibility barriers and tripping hazards. It wrongly converts our sidewalks and other public places into free parking for the e-scooter industry, with the public substantially subsidizing their profits.

Bird claimed at that meeting that the problem of e-scooters being ridden on sidewalks would be dramatically reduced if riders could lock up a rental e-scooter on the sidewalk, using the “lock to” option. It defies logic to argue that this solves the problem of riding e-scooters on sidewalks. A person would ride an e-scooter on a sidewalk, rather than the road, to avoid cars or the many potholes in our roads. Where one can park the e-scooter at the end of the ride does not dictate whether one chooses to ride on the sidewalk rather than the adjacent road en route to one’s destination.

The industry proposed having each e-scooter equipped with a double kickstand to reduce the risk of them falling over when parked. That suffers from the same problems as the lock-to proposal.

Similarly, the industry’s proposal that each e-scooter have an onboard diagnostic mechanism to indicate if the e-scooter has toppled over also has the same deficiencies. It also assumes that the e-scooter companies will flood the city with enough people to immediately remove such an e-scooter before someone trips over it.

At the February 25, 2021 Toronto Accessibility Advisory Committee meeting, Lime proposed that the industry could share big data with city officials e.g. if there are locations where there are repeat problems with e-scooters. If this is shown the City might wish to protect the public by creating new infrastructure. By this, it appears to mean that if there is a route where e-scooter riders repeatedly ride on the sidewalk, the City might wish to build a separate path.

By this, the industry concedes the risk of repeat violators. It shifts to the public the financial burden of building new infrastructure to avoid people being injured by e-scooters. It provides no assurance that riders who repeatedly use those sidewalks will stop doing so once a separate bike path is built.

At the February 25, 2021 Toronto Accessibility Advisory Committee meeting, Lime Canada also says that in the shorter term, this could help focus enforcement on those corridors. That too exposes pedestrians to the dangers of e-scooters, and shifts to the public the cost of additional law enforcement.

At the February 25, 2021 Toronto Accessibility Advisory Committee meeting, Lime claimed that education of riders along with enforcement are “very good tools”. Yet enforcement is a major public cost burden. It starts from the premise that the e-scooter has already caused harm.

We add that Toronto cannot rely on education of riders, since a rider can rent an e-scooter without having to ever speak to a human being from the e-scooter rental company, from whom they could receive that education. Moreover, Lime Canada conceded that education alone is “not enough” to solve the admitted problem of people riding e-scooters on sidewalks. It conceded as well and that there must be “a degree of enforcement” (though it did not specify how much enforcement it conceded to be necessary).

As explained earlier, an e-scooter is a motor vehicle. Nevertheless, Lime’s solution for the problem of bikes creating accessibility barriers when left on sidewalks is to regulate them as if they were non-motorized bikes. Yet that would simply add to sidewalk barriers. In effect, the industry sought the lowest and most permissive degree of regulation possible, with the least accountability.

For decades, our society has regulated motor vehicles far more extensively than bikes. We require the vehicle and driver to each be licensed and insured. We require the driver to complete sufficient training, including safety training under proper supervision, before being allowed to drive in public. Licenses are gradually graduated for drivers as their experience grows. Vehicles must meet rigorous safety standards. In contrast, the e-scooter rental industry seeks to evade all of those regulations, as if an e-scooter were not a motorized vehicle.

 8. E-scooter Corporate Lobbyists’ Numerous False, Misleading and Exaggerated Claims Further Show Why Toronto Should Reject Their Dangerous E-scooter Proposals

The e-scooter corporate lobbyists’ misleading false and claims, flights of extreme exaggerations and flights of illogic are breathtaking. Toronto Mayor John Tory, City Council and City staff should take their claims with at least a grain ton of salt. They should insist on strong corroboration before accepting any of their claims.

The AODA Alliance’s October 30, 2020 report revealed that these corporate lobbyists have been inundating Toronto City Hall with a huge, well-financed relentless, feeding frenzy of lobbying in the back rooms. Some Councillors have told us that this is one of the biggest, if not the biggest corporate lobbying effort now at City Hall. The AODA Alliance ‘s October 30, 2020 report on this lobbying feeding frenzy gives insight into why in the midst of the COVID-19 pandemic when other pressing issues should be a priority, Toronto’s municipal politicians are so seriously considering unleashing e-scooters in Toronto, despite their amply-documented dangers to people with disabilities, seniors and others.

That report shows that entries in Toronto’s official Lobbyist Registry, filling fully 73 pages, reveal that in just the two years from June 2018 to the present, eight e-scooter rental companies and three lobbying firms have documented fully 1,384 contacts with City Hall in person, by phone, by virtual meeting or by email. Among these were at least 112 meetings with City officials and 1,153 emails. These figures only include contacts which corporate lobbyists opted to record in the Toronto Lobbyist Registry during that period.

Amidst this onslaught of corporate lobbyists’ approaches were a dizzying 94 contacts with the Mayor’s Office, including 10 with Mayor Tory himself, 58 with the Mayor’s Senior Advisor, Legislative Affairs Daniela Magisano, 15 with Mayor Tory’s Director of Legislative Affairs Edward Birnbaum, 10 with his Chief of Staff Luke Robertson, and 1 with Mayor Tory’s Deputy Chief of Staff Courtney Glen. As well, among these documented contacts are 368 contacts with members of City Council, 479 contacts with staff of members of council, as well as 352 contacts with other City staff, among others (We surmise that the corporate lobbyists may not have reached a few janitors).

Beyond those address earlier in this brief, corporate lobbyists’ public presentations in support of e-scooters at the February 25, 2021 Toronto Accessibility Advisory Committee meeting and the earlier July 9, 2020 Toronto Infrastructure and Environment Committee meeting, are replete with the following ten additional falsehoods, exaggerations, and transparently bogus arguments. That they must resort to such meritless arguments to offer further shows that their proposals lack real merit.

As a first example, Bird told the February 25, 2021 Toronto Accessibility Advisory Committee meeting that an important question is whether City Hall continues to ignore the number of e-scooter riders on city streets today, despite the current ban on them, or whether Toronto chooses to regulate this space with “sensible regulations?” It argued that Toronto should lift the ban on e-scooters because some people are now illegally riding privately-owned e-scooters in Toronto.

This falsely suggests that the proper solution to dangerous lawlessness is not to enforce the law, but instead to legalize the dangerous illegal activity. By that reasoning, Canada should lift the ban on unlawful assaults, and regulate assaults instead, since some people illegally assault others. Canada should now lift the ban on heroin and crack cocaine, because some people now illegally use those dangerous drugs.

Instead, the fact that some people are now flouting the law by illegally riding privately-owned e-scooters in Toronto is strong proof that we can expect more flouting of the law by rental e-scooter riders if their use is legalized but banned on sidewalks.

Similarly, Lime relied heavily on the false dilemma that either people will buy their own e-scooters without speed controls, or we can allow rental e-scooters with speed controls. Yet Toronto has the further option of enforcing the law against riding any e-scooters and confiscating any e-scooter ridden illegally in public. That would resolve the whole problem without a necessity of legalizing either owned or rental e-scooters.

Second, at the February 25, 2021 Toronto Accessibility Advisory Committee meeting, Bird misleadingly described the ban on e-scooters as a “temporary ban”. In fact, the legal ban on e-scooters in Toronto is permanent, unless City Council votes to lift it. Moreover, at present, it can only be lifted for under four years. After that the provincial ban on e-scooters goes back into effect.

Third, Bird told the Toronto Accessibility Advisory Committee on February 25, 2021 that Ottawa’s pilot with e-scooters is the “gold standard” by which Toronto should be guided, as if Ottawa’s experience provides an effective answer to public safety and disability accessibility concerns. Yet Toronto City staff presented earlier at that meeting that Ottawa City staff had not even collected e-scooter injury data. Later at that meeting, CNIB deputed that during the Ottawa pilot, e-scooters were operated unsafely and left in pedestrian clearways throughout the downtown. This caused accessibility barriers and safety hazards. Despite all this, Ottawa is expanding their e-scooter fleet. That means that a key purpose of the pilot, to see their impact on injuries, was disregarded by Ottawa.

CNIB held a public meeting to get feedback from people with vision loss about their experience during the Ottawa e-scooter pilot. It heard alarming stories of safety hazards posed to people with vision loss by e-scooters. There was unsafe operating of e-scooters, regular illegal sidewalk riding of e-scooters and improperly parking e-scooters. 1On a survey about the pilot, 69% of respondents encountered wrongly parked e-scooters. 72% of survey respondents encountered sidewalk riding.

Ottawa City Council nevertheless approved e-scooters for a second pilot despite the staggering data the City itself collected. CNIB warned Toronto not to follow the Ottawa experience. That a leading, e-scooter corporate lobby could point to Ottawa as “the goal standard” shows how dramatically antithetical they are to the vulnerability of people with disabilities.

Lime claimed that in Ottawa, the votes to continue the e-scooter program were nearly unanimous. That only shows the devastating reach of the e-scooter corporate lobbyists.

Fourth, Bird tried to portray e-scooters as an important mobility aid for people with disabilities. The industry tried to appear as if it were advocating in favour of expanded accessibility for people with disabilities when its core business in fact endangers accessibility for people with disabilities.

Lime claimed at the February 25, 2021 Toronto Accessibility Advisory Committee meeting that they embrace the goal of accessibility for people with disabilities. It told that meeting that 8% of their riders have physical disabilities and use e-scooters as “a liberating tool to explore the city”. Yet e-scooters are not viewed as adaptive disability mobility devices in the disability community.

Lime provided no independently-verified objective evidence to support the claim that 8% of e-scooter riders have physical disabilities. They would seem to have no way to verify this, since their rental customers do not interact with Lime staff when renting an e-scooter. Moreover, even if some e-scooter riders have some sort of physical disability, there is no proof of how many, if any, need the e-scooter to meet a disability mobility need. It is important not to confuse a bona fide disability power scooter, in which a person with a disability is seated, and one of Lime’s very different rental e-scooters on which a rider must stand and balance themselves, while travelling much faster than a disability scooter can.

Fifth, Lime made the over-inflated if not bogus claimed at the February 25, 2021 Toronto Accessibility Advisory Committee meeting that allowing e-scooter rentals will help with recovery from the COVID-19 pandemic. This is because people will use an e-scooter to go to stores to shop.

Yet e-scooters are not supposed to be used to transport anything other than the person riding it, such as goods bought in stores. It presumes that e-scooter renters can leave their e-scooter scattered anywhere near any store they wish to visit. This threatens the sidewalk litter, accessibility barriers and tripping hazards that e-scooters have presented in other cities like Ottawa. It presumes that those same shoppers would not go shopping, helping out our economy, had it not been for renting an e-scooter. There is no proof that there has been any such surge in economic activity provably linked to e-scooters.

Sixth, an example of misleading use of statistics was Lime’s claim at the February 25, 2021 Toronto Accessibility Advisory Committee meeting that in Calgary, city data shows e-scooter injuries were far, far less than bike injuries. Even if there is such a statistic, it can easily be explained by the fact that there are far fewer e-scooters being ridden compared to the total number of bikes being ridden. Instead, the relevant statistic to use is the number of injuries per kilometer ridden. At that Toronto Accessibility Advisory Committee meeting, Lime and Bird did not use that relevant measure for injuries, when comparing different modes of travel, whether cars, bikes or e-scooters. They therefore did not account for how many of each kind of vehicle is on the road, or how far they are driven before causing an injury, or the severity of the injury they cause.

Seventh, Lime argued that rental e-scooters have the added protection of in-built speed limits and geo-fencing capabilities, which are not included in e-scooters that people privately buy. As well, as noted earlier, City staff correctly concluded that geo-fencing is not now a reliable technology. As well, to allow rental e-scooters does not assure that people won’t also ride privately-owned e-scooters. Lime advanced the false dilemma that either people will buy their own e-scooters without speed controls, or Toronto can allow rental e-scooters with speed controls. Yet there is the further and preferred option of effectively enforcing the ban on riding any and all e-scooters, and confiscating any illegally-ridden e-scooters.

Eighth, Lime claimed at the February 25, 2021 Toronto Accessibility Advisory Committee meeting that there have been no deaths due to rental scooters because they have speed controls. This claim is dubious. It requires proof that a pedestrian, hit by an oncoming e-scooter at 22 KPH, cannot be killed, but one colliding at 30 or 40 KPH can be killed. No proof of such a medical improbability has been provided.

Ninth, Lime made the unsubstantiated claim at the February 25, 2021 Toronto Accessibility Advisory Committee meeting that e-scooters have a much higher parking compliance rate than do cars. Even if this were assumed to be true, the question is not whether to ban cars. It is whether to allow e-scooters which will create new safety dangers and new disability accessibility barriers. Moreover, cars, even when improperly parked, are not typically left strewn about sidewalks as a tripping hazard and accessibility barrier.

Tenth, at the February 25, 2021 Toronto Accessibility Advisory Committee meeting, Lime made the quite exaggerated claim that most major cities outside Toronto had embraced e-scooters, and that unlike Toronto, e-scooters have met with virtually universal acclaim in cities that tried them. This is shown to be misleading, in light of the following information included in the City staff’s presentation to the February 25, 2021 Toronto Accessibility Advisory Committee meeting:

“Large Urban Peer Cities

  • Peer cities have banned rental/shared e-scooters from downtowns in Chicago and New York City.
  • No rental/shared e-scooters yet in places such as:
  • Montréal (not for 2021) or Vancouver
  • Massachusetts (e.g., City of Boston)
  • Pennsylvania (e.g., City of Philadelphia)
  • New South Wales (e.g., City of Sydney, Australia)
  • Scotland (e.g., City of Edinburgh), The Netherlands (e.g., Amsterdam), and
  • Others have banned or since banned them, e.g., Copenhagen (city centre), Houston, San Diego (boardwalk ban), etc.
  • NYC (outside of Manhattan only) and Transport for London (UK) pilots not yet underway.”

City staff noted that Montreal, which earlier did a pilot with e-scooters, will not have e-scooters in 2021. Vancouver does not have e-scooters. Hamilton and Mississauga allow privately owned e-scooters. We add that the City of Mississauga Accessibility Advisory Committee recommended that e-scooters not be allowed. We have seen no reason given for Mississauga rejecting that important accessibility recommendation.

City staff noted that London, Waterloo and Windsor are involved in some sort of public consultations on e-scooters which is slowed due to COVID-19. Calgary only allows e-scooter rentals, as is the case for all Alberta. Calgary allows e-scooters on sidewalks, and has no bike share program. Calgary will now allow some use of e-scooters on roads, to reduce sidewalk use.

Calgary staff advised their Council that it is likely that e-scooters have the highest injury rate per transportation mode. 43% of e-scooter injuries that were transported to hospital required surgery, which is twice the rate for bicycle injuries. In Calgary, 37% of e-scooter injuries had suspected intoxication.

City staff also reported that looking at large cities with similar large populations, similar urban densities and similar climate, Chicago and New York City ban rental e-scooters from their downtown areas. There are no rental e-scooters in Montreal, Vancouver, Massachusetts (e.g. Boston), Pennsylvania (such as Philadelphia), New South Wales (such as Sydney). Melbourne requires an e-scooter to have a maximum power of 200 watts. Most e-scooters require a higher wattage than that. There are no e-scooters in Scotland or the Netherlands. They have been banned in the city centre of Copenhagen, Houston, and San Diego’s boardwalk.



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One Year After the First Secret Ontario Critical Care Triage Protocol Was Sent to Ontario Hospitals, the Threat of Critical Care Discrimination Against Some Patients with Disabilities Remains A Live Worry


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

One Year After the First Secret Ontario Critical Care Triage Protocol Was Sent to Ontario Hospitals, the Threat of Critical Care Discrimination Against Some Patients with Disabilities Remains A Live Worry

March 29, 2021

            SUMMARY

It was one year ago yesterday that the Ford Government secretly sent Ontario hospitals a deeply-flawed critical care triage protocol, directing how hospitals should decide who will be refused life-saving critical care if hospitals get overloaded by the COVID-19pandemic. It was one year ago next week that the disability community learned of this, and made public the fact that the Government’s critical care triage protocol discriminates against some patients with disabilities.

Where are we one year later? The COVID-19 pandemic is still upon us. Despite the good news of COVID-19 vaccines, waves of new infections continue to push Ontario’s hospitals to the limit. The risk of Ontario having to ration critical care remains a real one.

As well, one year later, the Ford Government wrongly continues to deal with this issue in secret, and without itself consulting the public or making public what it is doing. It continues to deny responsibility in this area, sloughing it off on the medical profession. It continues to sit back while an updated critical care triage protocol is in place, that would continue to discriminate against some patients with disabilities.

Oddly, the health care web page of the AODA Alliance website continues to be the best, if not the only place to go to find public copies of important documents in this area, such as Ontario’s January 13, 2021 Critical Care Triage Protocol, and the September 11, 2020 report of the Government’s Bioethics Table. News reporters continue to tell us that they cannot get straight answers, and at times, cannot get any answers at all, from the Ford Government on this critical care triage issue.

Even though too many news outlets have failed to give this issue the attention it deserves, there have been a few recent and important news reports. Below, we set out:

* The March 29, 29, 2021 Globe and Mail report on the critical care triage issue;

* The February 7, 2021 Globe and Mail report on the critical care triage issue; and

* The February 8, 2021 Lawyer’s Daily report on broader health care barriers facing people with disabilities during COVID-19, which situates the critical care triage discrimination against some patients with disabilities into that broader issue.

We offer four reflections on those reports:

  1. The cruel irony has not been lost on many people with disabilities that at the same time as people with disabilities must battle against the life-threatening dangers facing them if Ontario undertakes critical care triage, disability advocates have also been campaigning against Bill C-7, controversial new federal legislation that substantially liberalizes medical assistance in dying. There has been this increased governmental focus on ending the lives of people with disabilities, without comparable governmental efforts to improve the opportunities for living with a disability.
  1. As the Government itself hides, Dr. James Downar continues in effect to play the role of the Government’s chief defender on this critical care triage issue. He appears indistinguishable from a cabinet minister’s spokesperson. He has been credited with being an author, if not the key author, of the January 13, 2021 Critical Care Triage Protocol which embodies seriously harmful disability discrimination. As a member of the Government’s advisory Bioethics Table, he was a key player during a series of virtual meetings last summer, where the AODA Alliance and certain other disability advocates and experts voiced concerns in this area.

Dr. Downar’s statements in the Government’s defence in the March 29, 2021 article below constitute a seriously erroneous rejection of key points of input we presented to him and his Bioethics Table colleagues on these disability issues. That article states:

“He said using a scoring system, such as the clinical frailty scale, to evaluate patients is meant to limit the scope of a doctor’s subjective judgements or bias, in order to try to ensure everyone is treated equally. The protocol, he said, is focused on a patient’s risk of mortality at 12 months, not whether they have a disability.”

Whether or not the critical care triage protocol was intended as he stated, we and other disability advocates have shown that the protocol has the clear effect of discriminating because of disability. It is the effect of the protocol and not its intent that determines whether it is a violation of the Charter of Rights and/or the Ontario Human Rights Code. Dr. Downar’s defence provides no defence.

  1. Both Globe and Mail articles report on advocacy by some doctors to be given the power to pull the plug on critical care patients over their objection, taking away critical care they are already receiving, and thereby endangering their life. No one has answered our objection that Ontario cannot authorize this without the doctor running up against Canada’s Criminal Code homicide provisions. This piles onto vulnerable people with disabilities yet another danger to their lives, during a pandemic where they have disproportionately been at risk of getting COVID-19and dying from it.
  1. The Globe and Mail’s February 7, 2021 article quotes a bioethicist in defence of the January 13, 2021 Critical Care Triage Protocol, who claims it is designed to protect human rights. The title “bioethicist” implies great expertise in this area. However, there is cause for concern.

There is no public regulation of who can call themselves a bioethicist. There appears to be no self-governing body for bioethicists, and no code of ethics for bioethicists. We have learned through the critical care triage issue that a person does not need to have any training in law or human rights, to call themselves a bioethicist. Indeed, some make statements on basic constitutional and human rights that reflect a demonstrable lack of knowledge in these important areas.

For more background in this area, check out the AODA Alliance’s health care web page. Also, check out the AODA Alliance’s February 25, 2021 report entitled: “A Deeply Troubling Issue of Life and Death — An Independent Report on Ontario’s Seriously-Flawed Plans for Rationing or “Triage” of Critical Medical Care If COVID-19 Overwhelms Ontario Hospitals”.

            MORE DETAILS

Globe and Mail March 29, 2021

Originally posted at https://www.theglobeandmail.com/canada/article-ontario-covid-19-surge-could-force-doctors-to-use-online-calculator-to/

Ontario’s COVID-19 triage plan includes online care calculator

By JEFF GRAY

Staff

If COVID-19’s surging third wave overwhelms Ontario’s hospitals, doctors could soon be forced to use an emergency triage protocol that includes an online calculator to help decide who gets lifesaving care and who does not.

The website, which prompts physicians to key in a critical patient’s diagnosis in order to estimate their chances of survival, is part of an emergency procedure drafted to help doctors make what would normally be unthinkable decisions. The protocol has been distributed to hospitals. But it has never officially been made public.

The province has loosened some pandemic restrictions in recent weeks, even as daily new infections still shoot upward, with more than 2,448 recorded on Sunday and 19 deaths. Ontario counted 390 COVID-19 patients in its intensive-care units, not far from the peak of 420 hit in the second wave of the virus in January.

While the provincial government says it has added hospital capacity, the Ontario Hospital Association warned last Friday that the province’s critical-care system was reaching its “saturation point” and that soon “hospitals will be under extraordinary pressure to try and ensure equitable access to lifesaving critical care.”

To deal with the onslaught, ICUs have been transferring critical patients from packed facilities to those elsewhere that still have space. Patients are being shipped via ambulance helicopter from Toronto to as far away as Kingston. Field hospitals have also sprung up around several health care facilities, including Toronto’s Sunnybrook Health Sciences Centre.

But more than a year into a pandemic that put hospitals in New York and Italy over the brink, the Ontario government has kept almost all planning for such a worst-case scenario out of the public eye.

By contrast, Quebec held open consultations on its emergency triage protocol months ago.

Meanwhile, the Ontario Human Rights Commission and disability rights groups have raised objections for months, warning that leaked drafts of Ontario’s protocol discriminate unfairly against older and disabled people.

Both a January version of the protocol, developed by the group that co-ordinates critical care across the province, and the online calculation tool have only come to light after being obtained by the Accessibility for Ontarians with Disabilities Act Alliance, a disability rights group.

The AODAA has also obtained a “framework document,” prepared by the government’s bioethics table, a committee of experts that has been wrestling with the triage issue for the past year.

The province’s Ministry of Health has said only that the triage protocol, known as an “emergency standard of care,” was drafted by the medical profession and not approved by the ministry.

The notion of an online triage aide may sound strange, but nothing about hospitals swamped by COVID-19 would be normal. The “short-term mortality risk” calculator would allow physicians to type data on the severity of a patient’s conditions – cancer, trauma, stroke and so on – to help come up with an estimated chance of survival after 12 months. Those with a higher chance of survival would be given priority for ICU spots. Decisions would be made by two doctors, not one alone.

David Lepofsky, a lawyer and chairman of the AODAA, said it’s the wrong approach.

“It creates the false impression that this can be an objective [task]. Just type in the data, press the button, the computer will tell you who lives and who dies,” Mr. Lepofsky said in an interview.

He takes issue with the protocol’s reliance on a metric for use on those over 65 known as the clinical frailty scale, which measures a patient’s ability to perform various everyday tasks.

That, he argues, devalues the lives of disabled people.

James Downar, a specialist in critical care at The Ottawa Hospital and a drafter of the triage plan who sits on the province’s bioethics table, said the online calculator is no different than the paper version that doctors can also use under the protocol.

He said using a scoring system, such as the clinical frailty scale, to evaluate patients is meant to limit the scope of a doctor’s subjective judgements or bias, in order to try to ensure everyone is treated equally. The protocol, he said, is focused on a patient’s risk of mortality at 12 months, not whether they have a disability.

“None of us want to be in a triage scenario,” Dr. Downar said.

“The purpose of a triage system is to reduce the number of preventable deaths and reduce the number of people who are denied critical care.”

Dr. Downar said he believed it would be best to make the triage plans public.

A spokeswoman for Ontario Health Minister Christine Elliott referred questions about the protocol to Jennifer Gibson, the cochair of the government’s bioethics table and director of the University of Toronto Joint Centre for Bioethics.

Dr. Gibson said the bioethics table has been in discussions with the Ontario Human Rights Commission on addressing its concerns with the triage protocol.

She also said the table has previously recommended an open public consultation on the triage issue – but that the government had so far not acted on this idea.

“We provide advice. And that advice may be taken or it may not be taken,” Dr. Gibson said.

Even with ICUs at a tipping point, Dr. Gibson said she didn’t think it was too late to start a more open discussion of the issues at stake, to build public trust.

Earlier this month, the chief commissioner of Ontario’s Human Rights Commission, Ena Chadha, wrote to Ms. Elliott to reiterate concerns about the protocol, the potential for discrimination against the disabled and a lack of consultation and transparency around it. Ms. Chadha and other groups have been at odds with the government over the issue since last March.

“We have to develop a framework that is equitable, with human-rights considerations being paramount. Which means it can’t be built on ageist or ableist notions, or assumptions about quality of life,” she said. “This is the problem.”

Michael Warner, the head of critical care at Michael Garron Hospital in Toronto’s east end, said ICU doctors have been familiarized with the emergency triage protocol – even though the government says it remains unapproved – and that committees at hospitals across the province to oversee it have been set up. He held up a paper triage form in a Twitter video on Friday, urging Premier Doug Ford to tighten public-health measures.

He also criticized the government for so far declining to say it would, if needed, issue an order to override Ontario’s health care legislation and allow for the withdrawal of lifesaving care from patients already in the ICU who are unlikely to survive. Under the plan as it stands now, only new patients would face ICU triage.

It’s unclear, Dr. Warner warned, how the plans would roll out in what would be an unprecedented crisis.

“This could be battlefield medicine,” he said. “We may end up having to improvise.”

 The Globe and Mail February 7, 2021

Originally posted at https://www.theglobeandmail.com/canada/article-ontarios-life-and-death-emergency-triage-protocol-remains-a-work-in/

News

Ontario’s life-and-death triage protocol still in progress

By JEFF GRAY

Staff

If a third wave of COVID-19 overwhelms Ontario hospitals, and intensive care units run out of beds, the province’s doctors could be forced to make previously unthinkable decisions about who gets access to life-saving treatment. Precisely how they would do that remains largely under wraps even as concern mounts about the spread of more contagious new variants of the virus.

Ontario has cancelled procedures, added beds and helicoptered patients from hotspots to less-crowded hospitals to avoid the worst. But its contingency planning for how doctors would cope with an uncontainable COVID-19 surge has occurred largely behind closed doors. That has raised alarms with disability rights activists and the Ontario Human Rights Commission, who warn hospital triage protocols must guard against discrimination.

Meanwhile, some doctors say a draft “emergency standard of care” distributed to hospitals last month – but not publicly released – does not go far enough.

They say it lacks a grim but necessary provision: The power to unplug patients who are unlikely to survive from life support without consent to make room for those with a better chance.

Not allowing this kind of triage, some doctors argue, could create a kind of first-come, firstserved system, in which patients who might have lived are denied access to scarce ICU beds because others who have little hope already occupy them. More people, they say, would end up dying.

The problem is a legal one. In Ontario, removing life support without the consent of the patient or their next of kin or designated decision maker has been barred since the Supreme Court of Canada decision ruled in 2013 that the province’s Health Care Consent Act applies to both providing and withdrawing care.

The decision did not affect other provinces.

Quebec’s triage protocol, which has been made public, would allow doctors to apply a set of criteria to remove patients from life support without consent if needed. Other jurisdictions, including New York, have had to invoke triage protocols, formal or informal, to deal with tidal waves of COVID-19 cases.

Ontario’s COVID-19 bioethics table, made up of critical-care doctors and academics, recommended in a September “framework” document that the government issue an emergency order “related to any aspect [of the triage plans] requiring a deviation from the Health Care Consent Act.” It also called for an order to provide liability protection for doctors. The document laid out the principles for triaging patients in a COVID-19 surge.

In response to inquiries from The Globe and Mail, Ontario’s Ministry of Health said in a statement that an emergency order, which would need cabinet approval, “is not currently being considered.” It also said it had not yet officially approved any triage protocol and that the bioethics table would continue to discuss the proposals with “stakeholder groups.”

The draft emergency standard of care distributed to hospitals would classify new patients needing life support based on how likely they are to survive for 12 months. But those already inside the ICU, no matter how small their chance of recovery, would stay put.

Michael Warner, the head of critical care at Michael Garron Hospital in Toronto’s east end, said the government has to issue an emergency order to fix an unfair triage plan that would leave more people dead. But he said he realizes politicians would rather not confront the issue before it is necessary: “I understand that this is a nuclear football for any government.”

Last month, with more than 400 COVID-19 patients in ICUs across the province, hospitals raised frantic alarms. But with the recent slowdown in infections, numbers have declined.

On Friday, the province said it had 325 patients in its ICUs with the virus.

Critics say Ontario is wrong to keep the life-and-death deliberations quiet. Disability rights activists obtained leaked copies of the framework and the proposed standard of care and posted them online. Neither of the cochairs of the bioethics table responded to requests for comment for this article.

“That’s just the way Doug Ford likes to do things, behind closed doors, and in secret,” Opposition NDP Leader Andrea Horwath said. “But on something like this, literally life-and-death decisions … there’s just no excuse to not make these kinds of policy decisions the result of massive engagement with Ontarians.”

Disability rights activists say the current proposal would discriminate against the disabled.

Some hold that doctors should never remove a patient from life support without consent.

“That is a point that we shouldn’t have to get to,” said Mariam Shanouda, a lawyer with the ARCH Disability Law Centre, who argues the government must do more to ensure such drastic measures are never needed.

David Lepofsky, a lawyer and chairman of the Accessibility for Ontarians with Disabilities Act Alliance, said the triage protocol lacks an arm’s-length process to appeal decisions, which doctors say is not compatible with acting quickly in a crisis. He also questions the government’s legal authority to issue an emergency order that would allow doctors to remove a patient from life support without consent.

“Any doctor that would consider doing this, I hope they’ve got a lawyer,” Mr. Lepofsky said.

Andrea Frolic, an ethicist and the director of the medical assistance in dying program at Hamilton Health Sciences, who served on the bioethics table until last September, said no protocol is perfect, but the current draft includes safeguards and is designed to protect human rights.

It focuses on the individual patient’s risk of dying, she said, not any disability.

Dr. Frolic said the government needs to assure ICU doctors that the protocol and an emergency order are in place long before infections begin to spike again, so that doctors – and the public – are prepared: “That’s not necessarily something that can turn on overnight.”

The Lawyer’s Daily February 8, 2021

Originally posted at https://www.thelawyersdaily.ca/articles/24331/research-project-seeks-to-understand-covid-19-justice-barriers-for-people-who-live-with-disabilities

Research project seeks to understand COVID-19 justice barriers for people who live with disabilities

Researchers at a western Canada university have embarked on studies into how measures to combat COVID-19 have impacted access to justice for Ontarians with disabilities living in care centres and people with mental disorders in British Columbia’s prisons and psychiatric facilities.

Thompson Rivers University (TRU) law professor Dr. Ruby Dhand is one of the researchers who in January launched the two projects. Each is being run in collaboration with various legal and advocacy groups. The goal, to use legal and scientific research to promote legislative change.

The Ontario project, Dhand told The Lawyer’s Daily, will also involve a TRU science professor and a law professor from the University of Windsor and will be run in collaboration with the Toronto-based ARCH Disability Law Centre (ARCH).

According to a description on a TRU webpage, the project will examine “COVID-19 barriers to justice for those who live with disabilities in these congregate care settings,” such as long-term care homes, group homes and assisted living facilities.

Dhand said restrictions put in place to combat the health crisis have resulted in a lack of care, community supports and “communication devices,” as well as fallout from visitor bans and reductions in standard services.

“We’ve recognized that people with disabilities, as this pandemic has evolved, who are living in congregate care settings … have really been disproportionately impacted,” said Dhand. “It’s become clear that over 80 per cent of these COVID-19 related deaths have occurred in these long-term care facilities. … They are experiencing complex forms of discrimination.

“[The] purpose of this research to highlight those voices, because this will be a quotative, multidisciplinary research project. … We recognize that, throughout this pandemic, the voices of people with disabilities have really be silenced, and it doesn’t seem like they’ve been prioritized.”

Dhand also talked about the controversial emergency “triage” protocol put together by the province, which would reportedly allow doctors in intensive care units to decide who gets a bed and who doesn’t in the event hospitals become overwhelmed by the health crisis.

“A clear access to justice issue has also been Ontario’s triage protocols,” Dhand said. “As a result of the triage protocols, a person with a disability will be deprioritized. The protocols state that they will be deprioritized for a ventilator [if their] future quality of life is determined to be poor because of their disability. So, disability advocates have raised concerns about the discriminatory impact of the triage protocols on people with disability in congregate care settings. … Access to health care is an access to justice issue.”

In January, ARCH issued a statement about possible temporary suspensions to Ontario health-care legislation that “would effectively permit doctors to withdraw treatment from a patient without the consent of the patient or family” if hospitals end up having “more patients than resources.” This would accompany the province’s triage protocol, ARCH goes on to state.

The Accessibility for Ontarians With Disabilities Act Alliance recently said that such a thing would be like “recklessly tap-dancing in a constitutional minefield.”

Dhand hopes the research she and the others conduct will help prompt legislative change.

“This proposed partnership comes at a critical moment in ARCH’s advocacy efforts, and we want to be able to help; we want to be able to have this research create disability-informed responses to the pandemic and post-pandemic planning.”

Turning to the second research project, Dhand says this B.C.-based initiative is examining COVID-19 transmission risks and barriers to justice for those being detained in the province’s mental health facilities, prisons and detention centres.

It is in collaboration with a number of community organizations, including the West Coast Justice Society and the Elizabeth Fry Society.

“People with mental health and substance use issues who are in mental health facilities and prisons and detention centres have an increased potential of death,” said Dhand. “They experience much higher likelihood of getting COVID-19 because these are congregate care facilities, where people live in crowded and confined spaces with high transmission risk. And there is also a lack of resources [and] a lack of [personal protective equipment]. And people with mental health and substance use issues have already pre-existing health issues and vulnerabilities.”

Dhand said they can also “experience consent and capacity issues” and, in some cases, “may not even understand what the public health measures mean.”

She also cites “a lack of community-based care and diversion options” and an increase in the use of solitary confinement and lockdowns since the start of the pandemic.

Both projects will run for up to two years, Dhand said.



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Ontario Human Rights Commission Echoes More Serious Concerns with the Ontario Critical Care Triage Plan – Will the Ford Government Start to Listen This Time?


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

Ontario Human Rights Commission Echoes More Serious Concerns with the Ontario Critical Care Triage Plan – Will the Ford Government Start to Listen This Time?

March 2, 2021

            SUMMARY

The pressure on the Ford Government mounts even more to open up, publicly discuss and substantially revise its seriously flawed plans for rationing or triage of critical medical care if the COVID-19 pandemic overloads hospitals. On March 1, 2021, the Ontario Human Rights Commission wrote the Ford Government a strong letter, set out below. It echoes a number of our serious problems with the Ontario critical care triage plan. It specifically references concerns that have been raised by the AODA Alliance and the ARCH Disability Law Centre.

We commend the Ontario Human Rights Commission for this letter. We call on the Ford Government to come out of hiding, and address the serious concerns that we and the Ontario Human Rights Commission are raising.

If there must be a critical care triage plan and protocol, it must be legally valid and constitutional. It is not good enough for anyone to duck our concerns by simply taking the position that a critical care triage plan is needed. That one is needed does not justify its discriminating because of disability contrary to the Ontario Human Rights Code and Charter of Rights, and its failing to provide due process to patients whose very lives are in jeopardy.

There is an urgent need for frontline doctors, being trained to conduct critical care triage, to be alerted to the serious human rights and constitutional violations that they could commit. As the AODA Alliance’s February 25, 2021 report on Ontario’s critical care triage plan reveals, a recent January 23, 2021 webinar for over 1,100 frontline doctors completely failed to alert those trainees to these issues. It misleadingly told those trainees that the Ontario Human Rights Commission was consulted on the development of Ontario’s critical care triage plan, without also alerting them that the Commission (along with community organizations like the AODA Alliance) raised serious human rights objections to that plan. The Commission’s letter, set out below, is yet more proof that such misleading training for critical care triage doctors risks real harm to patients with disabilities.

The Ontario Human Rights Commission’s letter refers to an earlier written submission on critical care triage that the Commission sent the Government-appointed Bioethics Table last December, and to a summary that the Bioethics Table prepared of a consultative roundtable that the Bioethics Table held on December 17, 2020 (in which the AODA Alliance participated). We set that summary out below, as well as the Ontario Human Rights Commission’s written submission that supplemented it, included as an appendix to that summary. We want to give you some information to help you read the summary of the December 17, 2020 roundtable that the Bioethics Table prepared:

  1. Several key points that the AODA Alliance raised at that December 17, 2020 roundtable are set out in greater detail in the AODA Alliance’s unanswered December 17, 2020 letter to the Minister of Health.
  1. The overwhelming point that came from the community groups at that roundtable made was that they had not had time to prepare for that rushed meeting, but had serious human rights concerns with the critical care framework we were shown. Since then, no such consultation has been held with community groups like the AODA Alliance by the Government, its Bioethics Table or its Ontario Critical Care COVID Command Centre. This is so even though the Government and its proxies and defenders in the medical world repeatedly claim that consultations are ongoing on the Ontario critical care triage plan.
  1. As it turns out, we now know that the Ford Government and its Ontario Critical Care COVID Command Centre had already taken important steps towards its critical care triage plan by the time that the December 17, 2020 roundtable was being held. These steps were likely known to the Bioethics Table participants, but were not revealed to the AODA Alliance and other community groups taking part in that discussion.

For more background, check out:

  1. The AODA Alliance’s February 25, 2021 report revealing new serious problems with the Ontario critical care triage plan, and its February 26, 2021 news release on that report.
  1. The January 13, 2021 Ontario Critical Care Triage Protocol, which the Government has never revealed, and which we believe is only publicly downloadable from the AODA Alliance website.
  1. The eight unanswered letters from the AODA Alliance to the Ford Government on its critical care triage plan, including the AODA Alliance‘s September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter, its December 17, 2020 letter, its January 18, 2021 letter and its February 25, 2021 letter to Health Minister Christine Elliott.
  1. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed last month.
  2. The AODA Alliance website’s health care page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.

            MORE DETAILS

 March 1, 2021 Letter from the Ontario Human Rights Commission to the Ontario Government

The Honourable Christine Elliott

Minister of Health

College Park 5th Floor, 777 Bay Street

Toronto, ON M7A 2J3

Dear Minister Elliott:

RE: Follow-up on critical care triage – Ongoing human rights concerns and the need for public consultation

I hope this letter finds you well. Thank you for speaking with me in December 2020 and confirming your commitment to human rights and your interest in ensuring that our stakeholders’ concerns are appropriately heard. As you know, since April 2020, the Ontario Human Rights Commission (OHRC) has voiced the importance of respecting human rights when triaging critical care during the pandemic. The OHRC has sought to promote an equity-sensitive approach that is fair, transparent and founded on human rights principles.

Since last year, the OHRC has called on the Government to publicly release and consult with human rights stakeholders on various iterations of the critical care triage protocol and framework. Throughout this time, the OHRC has undertaken all best efforts to support the COVID-19 Bioethics Table in its work to revise a triage framework that respects human rights.

We are writing to highlight certain issues about the most recent triage-related documents that the Ontario Critical Care COVID-19 Command Centre has disseminated to health-care administrators and, once again, to offer our support to your Ministry in hopes of ensuring that the concerns and interests of human rights stakeholders will be heard.

As you know, last December, the OHRC worked collaboratively with the COVID-19 Bioethics Table to facilitate a consultation with human rights stakeholders on the September 11 version of the proposed triage framework document. The Bioethics Table prepared a summary of the meeting and circulated it to participants. The summary also included an appendix prepared by the OHRC summarizing its recommendations for the Bioethics Table and your Ministry’s consideration.

Early this year, the OHRC obtained a copy of the Emergency Standard of Care dated January 13, 2021. We also obtained copies of related supplementary materials on the Emergency Standard of Care:

Template letters to be sent to patients informing them they will not receive critical care and/or that critical care is being withdrawn without their consent

An online short-term mortality risk calculator with digitized clinical tools to assess mortality

Critical Care Services Ontario’s January 23, 2021, webinar and slide deck to help disseminate the Emergency Standard of Care within the sector.

While the OHRC appreciates that the Emergency Standard of Care refers to human rights principles and obligations in its introduction, we remain concerned about the following issues that we raised earlier:

The reliance on a 12-month predicted mortality timeline is excessive and risks discriminatory biases

The use of clinical assessment tools not validated for critical care triage also risks discriminatory bias

The need to account for the human rights duty to accommodate throughout the decision-making process including when assessing a patient’s predicted mortality

The need to ensure the legal right to due process and transparency for triaging decisions, including an effective mechanism for the right to appeal a decision that disproportionately impacts the right to life of vulnerable groups

The need to ensure appropriate human rights training and guidance for healthcare service providers so that they can implement the standard equitably and effectively.

Further, while the OHRC appreciates that the Emergency Standard of Care is intended to be an “evergreen” document, we are concerned that this document and supplementary materials (including the online short-term mortality risk calculator) are being shared within the health-care sector with potentially discriminatory content and without sufficient public input or consultation. We are also concerned that the previous March 2020 version of the protocol, which was intended to be rescinded in October 2020, may still be in circulation and relied upon by health-care partners, particularly given something to this effect was noted in the above-cited January 23, 2021, webinar regarding emergency/ambulance services.

Stakeholders – including ARCH Disability Law Centre and the AODA Alliance – have expressed serious concerns that the government may act on calls for an emergency order to suspend certain provisions of the Health Care Consent Act, allowing doctors to withdraw patients from critical care without their consent, or that of their families or substitute decision-makers, and without independent oversight.

The OHRC understands that granting doctors such decision-making power is an extraordinary measure and one the Government will not take lightly. The OHRC also understands that your Ministry wishes to ensure that human rights stakeholders concerns are properly considered and understood. In light of this, we cannot overstate that even if the Government does not issue an emergency order, the lack of transparency regarding the status of the Emergency Standard of Care, plans regarding next steps and questions regarding due process are causing grave concern among vulnerable groups. We believe these concerns must be addressed immediately, particularly given the existence of new, highly transmissible variants of COVID-19.

The OHRC believes that now is the time to act to make sure that frameworks and protocols for triage decisions that are consistent with the Ontario Human Rights Code are in place before a potential third wave overwhelms Ontario’s health-care system.

We call on the Government to publicly release and consult human rights stakeholders including the OHRC on the latest versions of the proposed triage framework and the Emergency Standard of Care. There is an urgent need to make sure that vulnerable groups who may be disproportionately affected have an opportunity to share their perspectives while there is still time, and before the proposed triage framework and/or Emergency Standard of Care and related materials are finalized.

Sincerely,

Ena Chadha, LL.B., LL.M.

Chief Commissioner

cc:        Helen Angus, Deputy Minister, Ministry of Health

Matthew Anderson, President and CEO of Ontario Health

Jennifer Gibson, Co-Chair, COVID-19 Bioethics Table

Dr. Andrew Baker, Incident Commander, Ontario Critical Care COVID-19 Command Centre

Hon. Doug Downey, Attorney General

David Corbett, Deputy Attorney General, Ministry of the Attorney General

OHRC Commissioners

 Ontario Government’s Bioethics Table Summary of Its December 17 2020 Roundtable on Critical Care Triage

Stakeholder Roundtable

 Critical Care Triage During Major Surge in the COVID-19 Pandemic:

Proposed Framework for Ontario

Summary Report

Prepared by:

Jennifer Gibson, PhD (Co-Chair, Bioethics Table)

Dianne Godkin, PhD (Co-Chair, Bioethics Table)

21 December 2020

 

Introduction

On December 17th, the Ontario COVID-19 Bioethics Table (the “Bioethics Table”) and the Ontario Human Rights Commission (OHRC) co-convened a roundtable with human rights stakeholders (Appendix 1) to review and provide feedback on the Ontario COVID-19 Bioethics Table’s Critical Care Triage During Major Surge in the COVID-19 Pandemic: Proposed Framework for Ontario (the “Proposed Framework”). The Proposed Framework was developed iteratively from March to August 2020 (Appendix 2) and submitted with recommendations for next steps to the Ministry of Health and Ontario Health in September 2020. An earlier version of the framework, which had been developed and released to Ontario hospitals in March 2020, was never implemented and was subsequently rescinded on October 29th.

The roundtable was facilitated by Dr. Kwame McKenzie (CEO, Wellesley Institute). Representatives from the Office of the Minister of Health, the Ministry of Health, Ontario Health and the COVID-19 Ontario Critical Care Command Centre were in attendance as observers. As laid out by Dr. McKenzie, the roundtable aimed to ensure: 1) that all human rights stakeholders were able to share their views on the Proposed Framework; 2) that their concerns were heard by the Ministry, Ontario Health, Critical Care Command Centre representatives and by Bioethics Table members; and 3) that there was clarity on how the Proposed Framework could be improved. Roundtable participants were also provided with links to recent publications on the topic of critical care triage and associated frameworks/protocols in Canada and elsewhere (Appendix 3).

 

This report provides a high-level summary of key issues and concerns raised by roundtable participants and potential actions identified by roundtable participants to address these issues and concerns. It is not exhaustive of all that was discussed at the roundtable. It is intended to reflect the most urgent issues and concerns around which there was broad agreement among roundtable participants in the immediate context of Wave 2 of the COVID-19 pandemic. The OHRC has also provided an outline of its recommendations (Appendix 4). It was acknowledged by all that there are systemic health inequities that will require long-term solutions that are outside of the scope of critical care triage during a pandemic.

 

Key Issues/Concerns and Potential Actions

Roundtable participants stressed the paramount importance of a non-discriminatory, equitable, and culturally safe critical care triage approach. COVID-19 has already had a disproportionate negative impact on many of the communities represented by roundtable participants. Pre-existing historical and social inequities in health outcomes and negative experiences of the healthcare system further exacerbate these impacts. Some may experience intersectionality, the cumulative impact of belonging to more than one disadvantaged group (e.g., a racialized person who also has a disability). For Indigenous communities, it is not just a matter of individual survival, but of cultural survival if an Indigenous knowledge keeper becomes ill and dies. Participants raised concerns that there has been limited engagement of disability, older adults, Indigenous, Black and other racialized communities, arguably those who have been most significantly impacted during the pandemic, in all aspects of pandemic planning and that this has resulted in unsatisfactory and unsafe care. The possibility of triage raises significant fears that these historical and social inequities will be magnified if actions are not taken to implement a critical care triage process that is non-discriminatory. Participants were very concerned that they only had one week to review the Proposed Framework and had difficulty understanding some aspects of the document. Consequently, further engagement and stakeholder consultation is required. A general observation of the Proposed Framework raised by participants is that is not sufficiently prescriptive in describing what must be done.

The following Table summarizes the most urgent issues and concerns and potential actions identified by roundtable participants:

1.     Human Rights and Non-Discrimination as Legal Obligations
 

Issue: Roundtable participants need greater assurance that decisions related to critical care triage will be made in alignment with human rights codes and will be non-discriminatory.

Potential actions:

Ø  Articulate non-discrimination/human rights as the primary overarching legal obligation used to guide the critical care triage process.

2.     Equity as a Positive Obligation
 

Issue: Although equity is identified as an important ethical principle in the Proposed Framework, roundtable participants emphasized the need for a positive obligation to promote equity and for concreteness and clarity on how equity would actually be enacted in practice. It was recognized that under conditions of great stress during a major surge in demand for critical care, unconscious bias is likely to be activated unless steps are taken to support clinicians in promoting equity.

Potential actions:

Ø  Develop an equity-based checklist tool that healthcare providers must review and consider during the assessment stage of the triage process to help them account for the impact of social determinants of health and pre-existing co-morbidities due to social and historical inequities in the care of their patients.

Ø  Make requirements for accommodations for persons with disabilities or to address communication barriers explicit, including allowing a support person to be present as needed.

Ø  Ensure all who are involved in critical care triage process receive anti-racism, anti-bias (e.g., anti-ageism, anti-ableism), and Indigenous cultural safety training and/or have access to tools and resources (e.g., see checklist above) to minimize the risk of unconscious bias.

3.     Legal Framework for Critical Care Triage During a Major Surge
 

Issue: Critical care triage during a major surge would deviate from current legal and regulatory standards, particularly in relation to withdrawal of life-sustaining treatment without consent. Roundtable participants underscored the need for a legal framework to justify the critical care triage approach and to protect both healthcare providers and patients. Any liability protections for healthcare providers should require that they have acted in accordance with this legal framework and with the Ontario Human Rights Code.

Potential actions:

Ø  Develop a legal framework for critical care during a major surge, including key elements of due process.

4.     Critical Care Triage Decision-making Process and Clinical Assessment Tools
 

Issue: Roundtable participants expressed a need for critical care triage decision-making processes and clinical assessment tools to be outlined in greater detail and communicated in a transparent manner to patients and the public. While there was general agreement that for the purposes of triage decisions, clinical assessment should focus on predicted short-term mortality risk, specific concerns were raised about using 12-months as the time frame for predicted short-term mortality and about the validity of the tools for Indigenous persons and other marginalized persons. Roundtable participants also emphasized the need for critical care triage decisions to be transparent.

Potential actions:

Ø  Engage stakeholders in the identification/adaptation of clinical tools to ensure they are culturally appropriate.

Ø  Reduce the duration of short-term predicted mortality risk from 12 months to a lesser time period.

Ø  Include individuals (e.g., community leaders) outside of the medical profession in the implementation of the critical care triage decision-making process (e.g., as supports to patients in clinical decision-making; as members of the Triage Teams described in the Proposed Framework; as members of appeals committees).

Ø  Develop accessible communication tools tailored to the needs of particular groups to foster understanding and trust.

 

5. Right to Appeal
 

Issue: Given the significance of the decision to withhold or withdraw critical care resources from a patient, roundtable participants underscored the need for a timely appeal process as an important safeguard to uphold non-discrimination.

Potential actions:

Ø  Establish an external appeals process by a third party.

6. Development of Interim Protocol for Wave 2
 

Issue: Given the increasing hospitalizations in Wave 2, roundtable participants underscored the urgency of having a non-discriminatory, legally sanctioned, and effective triage protocol in place in the event that there is a major surge in demand for critical care in the coming weeks or months. Absent an interim protocol, roundtable participants acknowledged that clinicians would be left unsupported in the triage decision-making process and Indigenous, Black and other racialized patients and persons with disabilities would be placed at significant risk of harm. The interim protocol would be subject to further revisions and include ongoing engagement and co-development with key stakeholders.

Potential actions:

Ø  Develop an interim protocol in collaboration with human rights stakeholders and critical care providers. The interim protocol could be based on the institutional protocol created by the Ontario COVID-19 Critical Care Command Centre with modifications to reflect where there is broad human rights stakeholder agreement.

Ø  Concurrently, continue stakeholder engagement to address unresolved issues and to advance elements of the Proposed Framework which may require more time to implement.

APPENDIX 1: Roundtable Participants

Roundtable Facilitator:

Kwame McKenzie (CEO, Wellesley Institute)

Participants:

Nicole Blackman (Provincial Director, Indigenous Primary Health Care Council)

Avvy Go (Director, Chinese and Southeast Asian Legal Clinic)—also provided written submission

James Janeiro (Director, Community Engagement and Policy, Community Living Toronto)

Trudo Lemmens (Professor & Scholl Chair in Health Law and Policy, Faculty of Law, University of Toronto)

David Lepofsky (Chair, AODA Alliance)

Caroline Lidstone-Jones (CEO, Indigenous Primary Health Care Council)

Roxanne Mykitiuk (Professor, Osgoode Hall Law School, York University)

Tracy Odell (President, Citizens with Disabilities)

Mariam Shanouda (Staff Lawyer, ARCH Disability Law Centre)

Jewelles Smith (Past-Chairperson, Council of Canadians with Disabilities)

Observers:

  1. Office of the Minister of Health

Emily Beduz (Director, Pandemic Response)

Heather Potter (Director, Issues and Legislative Affairs)

  1. Ministry of Health

Tina Sakr (Team Lead, Priority and Acute Programs)

Jennifer Lee Arseneau (Senior Policy Advisor, Priority and Acute Programs)

Louise Verity (Strategic Advisor to the CEO)

  1. Ontario COVID-19 Critical Care Command Centre

Andrew Baker (Incident Commander)

 

  1. Ontario Human Rights Commission

Ena Chadha (Chief Commissioner)

Violetta Igneski (Commissioner)

Raj Dhir (Executive Director and Chief Legal Counsel)

Shaheen Azmi (Director, Policy, Education, Monitoring & Outreach)

Bryony Halpin (Senior Policy Analyst)

Jeff Poirier (Senior Policy Analyst)

Rita Samson (Senior Policy Analyst)

  1. Ontario COVID-19 Bioethics Table (in attendance)

Jennifer Gibson (Co-Chair; University of Toronto)

Dianne Godkin (Co-Chair; Trillium Health Partners)

Sally Bean (Toronto Region Bioethics Lead and Member; Sunnybrook Health Sciences Centre)

Cecile Bensimon (Member; Canadian Medical Association)

Carrie Bernard (Member; William Osler Health System, University of Toronto, McMaster University)

Nicole Blackman (*new member as of Dec 2020; Indigenous Primary Health Care Council)

Paula Chidwick (Central Region Bioethics Lead and Member; William Osler Health System)

James Downar (Member; The Ottawa Hospital, Bruyere Continuing Care, Ottawa Health Research Institute)

Lisa Forman (Member; University of Toronto)

Mary Huska (North Region Bioethics Lead and Member; Health Sciences North)

Michael Kekewich (East Region Bioethics Lead and Member; The Ottawa Hospital)

Stephanie Nixon (Member; University of Toronto)

Nancy Ondrusek (Member; Public Health Ontario)

Lisa Schwartz (Member; McMaster University)

Robert Sibbald (Member; London Health Sciences; Western University)

Maxwell Smith (Past Co-Chair and Member; Western University)

Randi Zlotnik-Shaul (Member; Sick Kids Hospital)

vii) Students

Veromi Asiradam, JD Student, Osgoode Hall Law School, York University

Ya-En Cheng, JD Student, Osgoode Hall Law School, York University

viii) Recorder

Danielle Linnane (Quality Improvement Specialist, Ontario Health)

 

APPENDIX 2: Development of the Proposed Framework

 

The Critical Care Triage During Major Surge in the COVID-19 Pandemic: Proposed Framework for Ontario (the “Proposed Framework”) was developed based on iterative review of the academic literature and published policy statements on critical care triage in a pandemic, consultation with clinical, legal, and other experts, and feedback from health system stakeholders. The Proposed Framework with recommendations for next steps was submitted to the Ministry of Health and Ontario Health in September 2020.

 

Development of the Proposed Framework was undertaken in three phases from March to December 2020:

  • In Phase 1, an initial draft framework was developed in March 2020 in response to an urgent need for the Ontario health system to prepare for the possibility of a major surge in demand for critical care as was being observed in Italy, Spain, and New York State. The initial draft, which was developed without the benefit of consultation with human rights stakeholders, among others, was released to hospitals on March 28 to aid planning. A major surge in demand for critical care was averted in Ontario. This draft framework was not implemented and was formally rescinded on October 29, 2020.
  • In Phase 2, extensive feedback on the initial draft framework was received in April 2020 through written submissions from diverse organizations and groups. Feedback was sent either directly to the Bioethics Table or to the Ministry of Health or Ontario Health and shared with the Bioethics Table. The Bioethics Table reviewed and considered all feedback and amended the document accordingly. Additional feedback was solicited from bioethics, health law, and clinical experts. An updated draft framework was developed in May 2020 based on new published findings in the literature, policy discussions in the public domain (e.g., policy statements), and written stakeholder feedback.
  • In Phase 3, the Bioethics Table began meeting with the Ontario Human Rights Commission (OHRC) in May 2020 and undertook an expanded stakeholder consultation process to elicit input from Black and other racialized groups, Indigenous health leaders, older adults, and disability rights experts. A first stakeholder roundtable was co-convened with the OHRC on July 15, 2020. Meetings continued through July and August with disability rights stakeholders and with the Indigenous Bioethics Reference Group of the Indigenous Primary Health Care Council. The Proposed Framework was informed extensively by these stakeholder discussions, an updated review of the literature and policy statements from civil society organizations (e.g., Canadian Association of Retired People), and additional input from health law and clinical experts. In December 2020, the Bioethics Table received approval to convene a second stakeholder roundtable to review and elicit feedback on the Proposed Framework. The roundtable took place on December 17, 2020.

The Proposed Framework document is a green document within the overall COVID-19 pandemic response in Ontario. The process for developing an approach to critical care triage in the context of a major surge in demand must be sensitive and responsive to changing conditions, emerging evidence, and evolving understanding of the ethical, social, and legal implications of critical care triage for major surge in a pandemic. As such, this document should be subject to regular review and updating as appropriate.

Acknowledgments:

The Bioethics Table would like to acknowledge the substantive feedback, input, and advice of the following organizations through written submissions and/or stakeholder consultations (listed alphabetically):

  • AODA Alliance
  • ARCH Disability Law Centre
  • Black Health Committee, Alliance for Health Communities
  • Canadian Frailty Network
  • Canadian Geriatric Society
  • Canadian Medical Protective Association
  • Canadian Thoracic Society
  • Chinese and Southeast Asian Legal Clinic
  • Citizens with Disabilities Ontario
  • Clinical, Organization, and Research Ethics (CORE) Network and Provincial COVID-19 Bioethics Community of Practice – University of Toronto Joint Centre for Bioethics[1]
  • College of Nurses of Ontario
  • College of Physicians and Surgeons of Ontario
  • Community Living Toronto
  • Council of Canadians with Disabilities
  • COVID-19 Critical Care Command Centre and Provincial Critical Care Table, Ontario Health
  • Indigenous Bioethics Reference Group, Indigenous Primary Health Care Council
  • Muscular Dystrophy Canada
  • Ontario Hospital Association/HIROC
  • Ontario Human Rights Commission
  • Ontario Medical Association

The Bioethics Table has also benefited from the substantive feedback, input, and advice of individual scholars and practitioners with expertise in the following areas:

  • Clinical Medicine – over 20 clinician experts in cancer care, cardiac care, complex continuing care, critical care, emergency medicine, geriatric medicine, neurology, stroke, thoracic medicine
  • Health Equity
  • Health Law and Human Rights Law

**Please note that these acknowledgments do not signify endorsement of the Proposed Framework.**

 

APPENDIX 3: Roundtable Documents

The following is a list of recent publications, including government or policy documents, journal articles, and media reports, on the topic of critical care triage and associated frameworks/protocols in Canada and elsewhere. These were pre-circulated to roundtable participants for their information.

 

Critical Care Triage Frameworks/Protocols from Other Jurisdictions

 

  1. Quebec Critical Care Triage Protocol (Nov 2020 – In French)
  2. Saskatchewan Health Authority Triage Working Group, Critical Care Resource Allocation Framework (Sept 2020)
  3. Joint Commission on Triage Decisions for Severely Ill Patients During the COVID-19 Pandemic (Israel, July 2020)
  4. COVID-19 rapid guideline: critical care in adults (UK-NHS, March 2020/updated Sept 2020)

 

Publicly Available Advocacy/Feedback related to Critical Care Triage

 

  1. ARCH Disability Law Centre
  2. AODA Alliance/ARCH Disability Law Centre
  3. Ontario Human Rights Commission
  4. Société québécoise de la déficience intellectuelle – English translation using Google Translate attached

 

Journal & Media Articles

 

  1. Nouvelles directives pour l’attribution des respirateurs artificiels (Le Devoir) – English translation using Google Translate attached
  2. Following controversy, Quebec revises rules for who gets intensive care treatment if resources are limited (CBC news)
  3. Frailty Triage: Is Rationing Intensive Medical Treatment on the Grounds of Frailty Ethical? (American Journal of Bioethics)
  4. Disability, Disablism, and COVID-19 Pandemic Triage (Journal of Bioethical Inquiry)
  5. What the Chaos in Hospitals Is Doing to Doctors: Politicians’ refusal to admit when hospitals are overwhelmed puts a terrible burden on health-care providers (The Atlantic)
  1. Using the Clinical Frailty Scale in Allocating Scarce Health Care Resources (Canadian Geriatrics Journal)
  2. Ontario has a world-leading protocol that all provinces and territories should adopt to be truly ready for COVID-19’s second wave (Policy Options)
  3. Proceed with caution with Ontario’s critical care triage protocol (Policy Options)

APPENDIX 4: OHRC Recommendations

Summary of OHRC Feedback on Triage Framework

December 18, 2020

 

Interim Framework / Protocol

  • The OHRC encourages the Ministry of Health to share the “protocolized” version of the Triage Framework that was sent to hospitals in Ontario and also make this document available to all stakeholders involved in the consultation.
  • Without having seen this document, the OHRC is not in a position to assess whether the protocolized version could be adapted or whether an entirely new document needs to be developed to reflect stakeholder input and serve as an interim protocol. An interim protocol should be short, user friendly and developed with a view to how it can be used in a crisis – until further consultation can happen.
  • The interim protocol could continue to evolve as a basis for further consultation on more complex and contentious issues. While not yet sanctioned by legislation or regulation, hospitals would have ready access to a protocol that is reasonably acceptable to stakeholders if a major surge happens.
  • An interim protocol could potentially address issues where there is agreement across stakeholder groups. The issues are, but not limited to:
    • Ensure the protocol recognizes that human rights is the primary guiding principle and law in accordance with the primacy clause under section 47 of Ontario’s Human Rights Code (Code)
    • Ensure there is a legislative basis for the protocol that will also provide for governance and accountability mechanisms including how to initiate the use of the protocol during a pandemic surge
    • Exclude the Clinical Frailty Scale (CFS) and any other clinical assessment factors and tools that are not validated for critical care resource allocation. The Bioethics Table recognizes the CFS was designed and validated to help identify treatment plans and accommodation supports for frail patients, and not for critical care triage. Used as a triage tool, the CFS would likely disproportionately impact Code-protected groups and may be inconsistent with human rights obligations including the duty to accommodate
    • Define short-term predicted mortality as the predicted risk of death in the initial weeks, and not twelve months after the onset of critical illness. The Bioethics Table recognizes that relatively little mortality occurs between six and twelve months
    • Ensure a fair and efficient appeal mechanism
    • Explicitly recognize the legal duty to accommodate including essential support persons / communications / interpreter access, etc.
    • Mandate a clear procedure to document decisions that requires evidence-based written reasons. This could include a “positive obligation” checklist to account for issues of equity and the social determinants of health
    • Require socio-demographic data collection to monitor for adverse application of the protocol
    • Allow for human rights equity groups to monitor, and provide feedback on the protocol.

The OHRC also agrees with the Bioethics Table’s recommendations that call on the Ministry of Health and Ontario Health to:

  • Issue clear communications that health care providers must disregard and destroy the March 28 version of the protocol
  • Circulate the proposed framework, including the clinical assessment factors and tools, for public feedback and independent legal review
  • Convene a multidisciplinary panel, including experts in human rights and law to further develop, or refute, the clinical factors and tools identified in the proposed framework
  • Engage health care partners to develop guidance for implementing the protocol including clinical operations, communications, training, patient and clinician supports, data collection and monitoring
  • Provide for governance and accountability mechanisms including responsibility for initiating the protocol, data collection and independent monitoring for adverse consequences
  • Sustain equitable COVID-19 prevention efforts to avoid the need to initiate the protocol, and mitigate disproportionate impacts on vulnerable groups
  • Meaningfully engage vulnerable groups, including Indigenous communities, Black and racialized communities, persons with disabilities, older persons and others for their perspectives and participation throughout the process to finalize and implement the protocol.
  • Provide comprehensive training on the new protocol, including anti-bias education.

[1] The CORE Network and the COVID-19 Bioethics Community of Practice comprise practicing bioethicists who work in a variety of health institutions, including hospitals, long term care homes, rehabilitation facilities, community care, and complex continuing care settings. Members have diverse disciplinary expertise (e.g., philosophy, law, anthropology) and clinical professions (e.g., medicine, nursing, social work, occupational therapy). CORE Network members are based in the Greater Toronto/Hamilton Area. The COVID-19 Bioethics Community of Practice draws practicing bioethicists from across the province of Ontario totalling >50 individuals. The University of Toronto Joint for Bioethics provides secretariat support for both the Core Network and the COVID-19 Bioethics Community of Practice.



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Click here to download in MS Word format “A Deeply Troubling Issue of Life and Death — An Independent Report on Ontario’s Seriously-Flawed Plans for Rationing or “Triage” of Critical Medical Care If COVID-19 Overwhelms Ontario Hospitals



Click here to download in MS Word format “A Deeply Troubling Issue of Life and Death — An Independent Report on Ontario’s Seriously-Flawed Plans for Rationing or “Triage” of Critical Medical Care If COVID-19 Overwhelms Ontario Hospitals



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New Report Reveals Frightening New Problems with the Ford Government’s Plans for Rationing Life-Saving Critical Medical Care if Hospitals get Overwhelmed by Another COVID-19 Surge


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

New Report Reveals Frightening New Problems with the Ford Government’s Plans for Rationing Life-Saving Critical Medical Care if Hospitals get Overwhelmed by Another COVID-19 Surge

February 26, 2021 Toronto: There are frightening and indefensible new problems with the Ford Government’s plans for how to decide who lives and who dies if the COVID-19 pandemic overloads Ontario hospitals, leading to rationing or “triage” of life-saving critical care. This is revealed in an exhaustive new report made public today. This thoroughly researched report reveals that:

  1. It is dangerous to relegate concern about Ontario’s critical care triage plans to the back burner, just because COVID infection rates are reducing and vaccines are gradually being distributed. There remains a real risk of another COVID-19 surge. A senior medical advisor to the Government advisor said on January 23, 2021 that such triage may already be taking place.
  1. A seriously flawed, disability-discriminatory and highly objectionable online calculator has been created for triage doctors to determine who will be refused life-saving critical care during triage or rationing of critical care. Such an online calculator’s computation, based on a doctor’s keying in data, should never decide that a patient should be refused life-saving critical care they need. This is especially so when that online calculator discriminates against some patients based on their disability.
  1. If hospitals start rationing or triaging critical care, there is a danger that some emergency medical technicians (EMTs) may improperly refuse to give a patient critical care they need and want before the patient even gets to the hospital – an improper backdoor trickle-down form of critical care triage.
  1. A transparently erroneous legal strategy has been devised for defending the legality of Ontario’s critical care triage plan. Triage doctors, hospitals and the Ontario Government are expected to argue that no one can sue them if a triage doctor refuses to give life-saving critical care to a patient who needs it and wants it, so long as they are following the January 13, 2021 Critical Care Triage Protocol (a protocol that is rife with serious problems that the AODA Alliance and other disability advocates have previously identified). They plan to say that because that document is called a “standard of care” for triage doctors (an inappropriate label for it), it provides a full defence. This new report shows that that legal defence strategy is fatally flawed.
  1. A troubling January 23, 2021 webinar to train frontline critical care triage doctors wrongly minimizes the enormity of the role doctors would play, while they are making life-and-death decisions over which patients would get life-saving critical care, if critical care triage takes place. That webinar harmfully and wrongly tries to convince triage doctors not to worry about being sued, so long as they follow the January 13, 2021 Critical Care Triage Protocol. At the same time, that webinar did not alert frontline doctors to the serious disability discrimination and due process concerns that disability advocates have raised with the directions that those frontline doctors are being told to implement if critical care triage is to occur.

“We agree that Ontario must be prepared for the possibility of critical care triage, but Ontario’s plan must include a lawfully mandated triage protocol that does not violate the Charter of Rights or the Ontario Human Rights Code by discriminating against people with disabilities, who have already disproportionately suffered the hardships of the COVID-19 pandemic,” said David Lepofsky, Chair of the non-partisan AODA Alliance, which campaigns for accessibility for 2.6 million Ontarians with disabilities. “This report confirms that the Ford Government has been hearing from health professionals and their insurance representatives, but the Government needs to end its embargo on directly talking to disability community voices about this important issue. We’ve written the Ford Government, calling on it to rescind the disability-discriminatory January 13, 2021 Critical Care Triage Protocol.”

Contact: AODA Alliance Chair David Lepofsky, [email protected]

For more background on this issue, check out:

  1. The AODA Alliance’s new February 25, 2021 independent report on Ontario’s plans for critical care triage if hospitals are overwhelmed by patients needing critical care, available at https://www.aodaalliance.org/whats-new/a-deeply-troubling-issue-of-life-and-death-an-independent-report-on-ontarios-seriously-flawed-plans-for-rationing-or-triage-of-critical-medical-care-if-covid-19-overwhelms-ontario-hospitals/ and the AODA Alliance’s February 25, 2021 letter to the Ford Government, sending it that report.
  2. The January 13, 2021 triage protocol.
  3. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed last month.
  4. The AODA Alliance website’s health care page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.



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Read the AODA Alliance’s February 25, 2021 Letter to Ontario Minister of Health Christine Elliott – AODA Alliance


Accessibility for Ontarians with Disabilities Act Alliance

United for a Barrier-Free Society for All People with Disabilities   Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

February 25, 2021

To: The Hon. Christine Elliott, Minister of Health

Via email: [email protected]

Ministry of Health

5th Floor

777 Bay St.

Toronto, ON M7A 2J3

Dear Minister,

Re: Ontario’s Plan for Medical Triage of Life-Saving Critical Care in the Event Hospitals Cannot Handle All COVID-19 Cases

We write to alert you to yet more serious concerns about the Ontario plan for critical care triage in the event that Ontario hospitals get overloaded and start to ration or triage life-saving critical care. With this letter, we enclose a new report that the AODA Alliance has prepared which independently reviews those plans. It identifies several serious new problems with the Ontario critical care triage plan, beyond those which we have earlier alerted you to in our unanswered letters, those being our September 25, 2020 letter, our November 2, 2020 letter, our November 9, 2020 letter, our December 7, 2020 letter, our December 15, 2020 letter, our December 17, 2020 letter and our January 18, 2021 letter.

We urge the Ford Government to immediately act to eliminate from Ontario’s critical care triage plan the problems we have identified up to now, and in this new report. Minister, this is an issue of life-and-death for Ontario’s most vulnerable people. It deserves a response from you.

For example, this new report reveals that a seriously troubling and disability-discriminatory online “Short Term Mortality Risk Calculator” has been created for triage doctors to use to calculate whether a patient should be refused life-saving critical care they need and want, if critical care triage must take place. It is available at www.stmrcalculator.ca It should immediately be shut down.

This new report also reveals that instructions may have been given or may be given to Ontario emergency services and EMTs on the possibility of not starting critical care supports in some situations for an emergency patient who needs and wants them, before reaching the hospital, if critical care triage has been directed for Ontario. This would be done so that hospitals don’t feel obligated to continue giving that patient critical care. We ask you to let us know if any such instructions have been given or have been designed or contemplated, by whom and to whom, with and with what authority? If so, we ask you to give us a copy of those instructions, past or present, and any draft instructions being considered.

This new report also shows that the troubling legal defence strategy that has been crafted to defend Ontario’s critical care triage plan is fatally flawed. It shows as well that this plan goes even further to in effect make each critical care triage physician a law unto themselves, dressed up as precise and objective medical science. We ask you to rescind that plan, and to ensure that any critical care triage plan or protocol is free of constitutional and human rights violations.

There has been no public announcement that critical care triage is already occurring in Ontario. To the contrary, The Government has said that it has not been occurring. Yet this report reveals that such triage in some form may already in effect be taking place in Ontario, according to a January 23, 2021 statement by one of the senior physicians involved in Ontario’s critical care triage planning. We ask you to immediately look into this, make all the relevant information public, and take steps to ensure that critical care triage does not occur until and unless it is free of these serious problems.

Please end your Government’s protracted secrecy in the area of critical care triage. This report reveals that senior physicians whom The Government has entrusted in this area have emphasized the importance of openness and transparency. For example, please make public now and provide us with the Bioethics Table’s secret January 12, 2021 report on critical care triage to The Government.

Minister, please now meet with us. Have your Ministry officials, responsible in this area, meet with us. Do not simply slough us off on the Bioethics Table. It is not the body making the decisions here. Moreover, the Bioethics Table has unwisely rejected some key parts of our input without explanation, without justification and without passing along the advice on this topic that it evidently opted to reject or disregard.

Please stay safe.

David Lepofsky CM, O. Ont

Chair Accessibility for Ontarians with Disabilities Act Alliance

CC:

Premier Doug Ford [email protected]

Helen Angus, Deputy Minister of Health [email protected]

Raymond Cho, Minister of Seniors and Accessibility [email protected]

Denise Cole, Deputy Minister for Seniors and Accessibility [email protected]

Mary Bartolomucci, Assistant Deputy Minister for the Accessibility Directorate, [email protected]

Todd Smith, Minister of Children, Community and Social Services [email protected]

Janet Menard, Deputy Minister, Ministry of Children, Community and Social Services [email protected]

Ena Chadha, Chief Commissioner of the Ontario Human Rights Commission [email protected]



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A Deeply Troubling Issue of Life and Death — An Independent Report on Ontario’s Seriously-Flawed Plans for Rationing or “Triage” of Critical Medical Care If COVID-19 Overwhelms Ontario Hospitals


A Deeply Troubling Issue of Life and Death

An Independent Report on Ontario’s Seriously-Flawed Plans for Rationing or “Triage” of Critical Medical Care If COVID-19 Overwhelms Ontario Hospitals

February 25, 2021

 Part I Introduction

This is an independent report on Ontario’s plans for how to ration or “triage” critical medical care, if the COVID-19 pandemic overloads Ontario hospitals. If there are more patients who need critical care than there are critical care beds, equipment and medical staff to treat them, Ontario has a plan in place for deciding which patients will be refused the critical care they need. To refuse critical care to a patient needing it is akin to a death sentence.

This report reveals new and seriously troubling problems with Ontario’s critical care triage plans. The AODA Alliance believes that this report is the most thorough and up-to-date external examination of Ontario’s current critical care triage plans.

The AODA Alliance and other disability advocates, such as the ARCH Disability Law Centre, have previously unearthed, documented and revealed to the public several serious problems with Ontario’s critical care triage plans. In this report, the AODA Alliance reveals and documents even more previously undetected serious problems. These bear on patients with disabilities during the COVID-19 pandemic. That pandemic has already imposed disproportionate hardships on people with disabilities.

It would be dangerously wrong to think that concern about Ontario’s plans for critical care triage can be relegated to the back burner because COVID-19 infection rates are reducing and the COVID vaccine is arriving. This is because there is a real risk of another surge. The much-more contagious new COVID-19 variants are spreading. Rolling out COVID vaccinations are delayed. There is uncertainty whether those vaccines immunize people from these new variants. Future Government loosening of public lock-downs risks further spread of the virus.

At a January 23, 2021 critical care triage training webinar for doctors and hospitals (discussed further below), a key player in the Government’s critical care triage planning, made it clear that such triage is not some remote hypothetical. Dr. Andrew Baker, Incident Commander on the Ontario Government’s Critical Care COVID Command Centre, said:

“This (i.e. triage) may already be happening. I’ve heard from many people, including leaders from O.H. (note which may refer to Ontario Health), From Steini Brown (Which appears to be a reference to Adalsteinn (Steini) Brown, Dean of the Dalla Lana School of Public Health who has been advising the Ontario Government on health issues) presenting on CP24, and others, that the net effect of the system right now is that people, threatened at better than 20% 12-month survival, are not getting usual access to care, with a measurable negative impact on the morbidity and mortality. So we’re being told that this type of decision, these decisions about redirecting incremental resources, are already happening, with a real impact on people’s outcome.”

Over the past ten months, the AODA Alliance and other disability advocates and organizations with whom we are allied, have been trying to discover the critical care triage plans are for Ontario, trying to review these plans once unearthed for possible problems, trying to raise our serious concerns with the Ontario Government, and trying to bring these issues to the public’s attention through conventional and social media. This effort has been made far more difficult because the Government has maintained a pervasive cloak of secrecy over its critical care triage plans and has been substantially unwilling to talk to disability community representatives about its critical care triage plans.

This report’s new findings are summarized as follows:

  1. It would be dangerous to put concern about Ontario’s critical care triage plans on the back burner, just because COVID infection rates are reducing and the vaccine is rolling out. There is a real risk of another COVID-19 surge. As well, a senior Government advisor says triage may already be taking place.
  2. Ontario created a seriously flawed, disability-discriminatory and highly-objectionable online calculator to compute who will be refused needed life-saving critical care during triage or rationing of critical care.
  3. There is a danger that emergency medical technicians (EMTs) could improperly refuse to give a patient critical care they need and want, before the patient even gets to the hospital – an improper backdoor trickle-down form of critical care triage.
  4. This report reveals the transparently erroneous legal strategy devised for defending the legality of Ontario’s critical care triage plan. By this strategy, doctors, hospitals and the Ontario Government would argue that no one can sue them if a triage doctor refuses to give life-saving critical care to a patient who needs it and wants it, so long as they do so following the January 13, 2021 Critical Care Triage Protocol. They plan to say that because that document is called a “standard of care” for triage doctors (an inappropriate label for it), it provides a full defence. This report identifies all the fatal flaws in that defence strategy.
  5. Merely proclaiming that human rights should be respected during critical care triage, and that there is no intent to discriminate, provides no defence to the disability-discriminatory January 13, 2021 Critical Care Triage Protocol
  6. This report reveals an even greater risk under Ontario’s critical care triage plan that each triage doctor can unintentionally become a law unto themselves than the AODA Alliance had previously discovered.
  7. Ontario’s critical care triage plan risks unfairly and arbitrarily providing different amounts of oversight of triage decisions from hospital to hospital.
  8. The training recently provided for frontline critical care triage doctors wrongly minimizes the enormity of their triage decisions and the importance of being legally accountable for them.
  9. A substantially incorrect idea of “equity” was presented to frontline doctors being trained to make critical care triage decisions.
  10. Some of those central to the planning for critical care triage in Ontario call for openness and transparency –something that this report shows to be missing.
  11. The Health Ministry still refuses to talk to the disability community about critical care triage plans, but is clearly talking to the health sector and their insurance companies.
  12. Doctors, hospitals and emergency medical services, should beware the protocol, directions and training they have been given on Critical Care Triage. They would use them in action that endangers patients life at their peril.

An important starting point for this report is that it may become necessary for Ontario to have rationing or triage of critical care services. The AODA Alliance does not dispute this, and has never disputed this. The AODA Alliance continues to argue that more can be done to avert it becoming necessary.

However, if it were to become necessary, Ontario must have a plan and protocol in place to govern it. The AODA Alliance has never disputed the need for such a plan and protocol. To the contrary, it is essential that Ontario be well-prepared for this possible nightmarish development.

If critical care triage is to occur, it must not be left to each triage doctor to decide based on their own beliefs or preferences which patients should be refused critical care, and on what basis. Our core message is that any critical care triage plan and protocol must be legal. They must fully comply with the human and constitutional rights of patients.

One cannot simply dismiss all concerns about unlawful discrimination in critical care triage plans or protocols on the grounds that any such triage “discriminates”, because some patients will be denied life-saving critical care they need. All laws give something to some people, but not others. What the Charter of Rights and the Ontario Human Rights code forbid is discrimination on certain illegal bases, such as one’s disability.

Here is how this report proceeds. Part II of this report gives a detailed background to the events leading to the creation of Ontario’s current critical care triage plans. It identifies the key organizations connected with the Ontario Government that are involved with creating this plan. It summarizes the serious problems with Ontario’s critical care triage plans from a disability perspective, that the AODA Alliance and others have previously revealed.

Readers who already know that background should skip right to Part III. It is the report’s meat and potatoes. Part III describes and documents each of the additional serious problems with Ontario’s critical care triage plan that the AODA Alliance here reveals. These are principally revealed from an analysis of the January 13, 2021 Critical Care Triage Protocol that has been sent to all Ontario hospitals, and the January 23, 2021 webinar on that protocol which teaches frontline doctors and hospitals how, when and why to implement that protocol, if Ontario hospitals are directed to ration or triage critical care services due to the COVID-19 pandemic. That webinar is the fullest peak behind closed doors to see what is in store under Ontario’s critical care triage plan.

The AODA Alliance puts the Ontario Government, and those designing and planning to implement Ontario critical care triage plans, on notice about these serious new concerns. We call on them to immediately talk to us and other disability advocates about these concerns, and to immediately rectify all these serious problems.

The AODA Alliance is a non-partisan grassroots disability coalition. It advocates for accessibility for 2.6 million Ontarians with disabilities, including in the health care system. It has been focusing for the past eleven months on the disproportionate impact of COVID-19 on people with disabilities and advocating for measures to protect their urgent needs during the pandemic. Its efforts on this issue are documented on the AODA Alliance website’s health care page.

 Part II Background to This Report and to Ontario’s Critical Care Triage Plans — for Newcomers to This Issue.

 1. Key Timelines, Organizations, Documents and Sources

In February 2020, Ontario’s Health Ministry secretly decided that Ontario needs to develop a critical care triage protocol, in case one is needed because of the impending COVID-19 pandemic. The Government secretly appointed an external advisory group of physicians and bioethicists to design it. That is the Government’s “Bioethics Table”.

In February and March 2020, the Bioethics Table secretly prepared an original triage protocol, the March 28, 2020 critical care triage protocol. It was not made public. Ontario Health, part of the Ontario Government, secretly sent it to all hospitals in the early 2020 spring.

Word of that protocol quickly leaked to the disability community. On April 8, 2020, over 200 disability organizations sent the Ontario Government and made public an open letter, that decried the March 28, 2020 protocol as disability discriminatory.

In an effort to swiftly offer constructive ideas, the AODA Alliance prepared and made public its April 14, 2020 Critical Care Triage Discussion paper. That Discussion Paper identified key ingredients that a critical care triage protocol should include.

On April 21, 2020, the Ontario Government publicly claimed that the March 28, 2020 critical care triage was only a “draft” even though it was not marked “draft”. It undertook that the Ontario Human Rights Commission and community advocates would be consulted on Ontario’s critical care triage plans.

During the 2020 summer, under the leadership and initial coordination of the Ontario Human Rights Commission the Bioethics Table held several virtual meetings with the AODA Alliance, the ARCH Disability Law Centre and a group of other disability advocates and experts. These disability advocates described serious human rights concerns with Ontario’s plans for critical care triage from the disability perspective. The Bioethics Table shared a revised draft critical care triage protocol. The AODA Alliance made it public on its website on July 16, 2020.

On September 11, 2020, the Bioethics Table submitted a report to the Ontario Government, recommending a framework for conducting critical care triage. The Government did not make this secret September 11, 2020 report public until December 10, 2020, and even then, only after repeated pressure. The Bioethics Table, the Ontario Human Rights Commission, the AODA Alliance and many others had called for the Government to immediately release the Bioethics Table’s September 11, 2020 report.

The Government continued to conceal other documents created in connection with that report, despite our requests to see them all. The Government had shared the Bioethics Table’s September 11, 2020 report and related secret documents with health care providers over the 2020 fall, at the same time as it was steadfastly refusing to show it to the public or to the disability community.

On October 29, 2020, the Ontario Government quietly rescinded the March 28, 2020 critical care triage protocol. Disability community advocates, supported by the Ontario Human Rights Commission, had been calling for months for it to be rescinded. The fact of its rescission was not made public until the Government was pressed on this topic in the Legislature’s Question Period on November 5, 2020.

On December 17, 2020, the Government-appointed Bioethics Table held a rushed virtual roundtable discussion on its just-released September 11, 2020 report on critical care triage. This included the AODA Alliance, some other disability community representatives and some representatives from racialized and Indigenous communities. Those community representatives united in stating that this rushed meeting did not give them enough time to read and fully analyze the September 11, 2020 Bioethics Table report, that their review to date revealed that it has serious human rights problems, and that they all wanted a further chance to give direct input on critical care triage plans. No such further opportunity for input has been provided.

At that roundtable, Dr. Andrew Baker, incident commander with the Ontario Critical Care COVID Command Centre, said a new approach to triage, embodying the concerns raised at the roundtable (with which he seemed to find real merit), would in effect have to wait for a future time. That would have to be after this pandemic is over.

On January 12, 2021, the Bioethics Table rendered a new report to the Ontario Government. This report is secret. The AODA Alliance has never seen it.

On January 13, 2021, a new critical care triage protocol was sent to Ontario hospitals. The Government did not make it public. It quickly made its way to the AODA Alliance and others.

The AODA Alliance made the January 13, 2021 Critical Care Triage Protocol public on the AODA Alliance website on January 18, 2021.

The January 13, 2021 Critical Care Triage Protocol states that it was approved by the Ontario Critical Care COVID Command Centre. The Ontario Government has declined to answer an AODA Alliance inquiry about the membership and mandate of the Ontario Critical Care COVID Command Centre. It is an internal Government-mandated body that evidently has been given provincial authority to decide what the critical care triage protocol should be, and when critical care triage should take place in Ontario. It has operated in secret, not in public.

On January 23, 2021, Critical Care Services Ontario held an online webinar to train frontline doctors and hospitals on why, when and how to conduct critical care triage under the January 13, 2021 Critical Care Triage Protocol. Critical Care Services Ontario is mandated to coordinate critical care services in Ontario, according to its website.

The AODA Alliance happened to learn about this webinar, and that it is posted on Youtube at https://www.youtube.com/watch?v=xatBYgXZHt4. That webinar’s contents are an important source for this report’s findings. Presenters at that webinar included key players in the design, oversight and defence of Ontario’s critical care triage plan.

The AODA Alliance has written the Ontario Health Minister Christine Elliott seven times over five months, detailing serious concerns with the Government ‘s critical care triage and asking important questions. None of these letters have been answered, including the AODA Alliance‘s September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter, its December 17, 2020 letter and its January 18, 2021 letter to Health Minister Christine Elliott.

A comprehensive “paper trail” of disability advocacy efforts on this issue from the perspective of patients with disabilities is available on the AODA Alliance website’s health care page. Some key documents, such as the January 13, 2021 Critical Care Triage Protocol, the Bioethics Table’s spring-summer draft of that protocol, and the Bioethics Table’s September 11, 2020 critical care triage report to the Ontario Government were all publicly posted for the first time on the AODA Alliance web page. It appears that the public needs to visit such public interest websites as the AODA Alliance website and the ARCH Disability Law Centre website, rather than the Ontario Government’s website, to find out what is going on in this important area of provincial public health policy, for which the Ontario Government is responsible.

 2. Previously-Revealed Fundamental Problems with the Ontario Government Plans for Critical Care Triage

This report identifies new and additional problems, previously unrevealed, with the Ford Government’s plans for critical care triage in Ontario, if hospitals cannot cope with a surge in the number of patients needing life-saving critical care. These new concerns supplement and build upon the important and disturbing problems with the Government’s critical care triage that the AODA Alliance and other disability advocates have revealed and publicized over the last ten months. Those earlier concerns are summarized as follows:

  1. The Government has not shown that there is valid legal authority to issue a direction to hospitals and physicians on critical care triage. A memo to hospitals cannot direct who lives and who dies. This is an important part of the rule of law in a democracy. See e.g. the AODA Alliance’s August 30, 2020 written submission to the Bioethics Table.
  1. The January 13, 2021 Critical Care Triage Protocol directs disability discrimination against some patients with disabilities who need critical care. It directs the use of the “Clinical Frailty Scale” as a tool for assessing some patients’ eligibility to be refused critical care. That Scale has doctors assess whether patients over age 65 with a progressive disease and needing critical care, can perform eleven activities of daily living without assistance, including dressing, bathing, eating, walking, getting in and out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, or handling their own finances. This focus on these activities, and the exclusion of any assistance when performing them, is rank disability discrimination. See e.g. the AODA Alliance’s August 30, 2020 written submission to the Bioethics Table, the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table and the ARCH Disability Law Centre’s September 1, 2020 written submission to the Bioethics Table.
  1. The January 13, 2021 Critical Care Triage Protocol does not provide due process to patients needing critical care and who are at risk of being denied that care due to critical care triage. They have no right of input into the decision, and no avenue for a swift appeal if doctors decide to refuse them the life-saving critical care that they need to survive. See e.g. the AODA Alliance’s August 30, 2020 written submission to the Bioethics Table and the January 26, 2021 AODA Alliance Update.
  1. The January 13, 2021 Critical Care Triage Protocol would in effect make each triage doctor a law unto themselves, with sweeping subjective discretion over who should live and who should die, dressed up in the garb of impressive medical jargon. See e.g. the AODA Alliance’s August 30, 2020 written submission to the Bioethics Table and the January 26, 2021 AODA Alliance Update.
  1. The Ontario Government’s senior medical advisors on critical care are urging the Ontario Cabinet to pass an executive order that would suspend the Health Care Consent Act. They want this so doctors could unilaterally withdraw critical care from a patient already receiving it, without that patient’s consent, in order to give that critical care to another patient. The AODA Alliance and other disability advocates have strenuously objected to any such suspension of the Health Care Consent Act. The AODA Alliance has warned that for the Government to try to do so, including if it tried to do so by an order of the Ontario Cabinet, would be tap dancing in a constitutional minefield. See e.g. the February 1, 2021 AODA Alliance Update.

 Part III Cataloguing Serious New Problems with Ontario’s Critical Care Triage Plan

  1. Ontario Has Created a Seriously Flawed Online Calculator to Compute Who Will Be Refused Needed Life-Saving Critical Care During Triage

We were deeply troubled to discover from the January 23, 2021 webinar that Ontario has created an online “Short Term Mortality Risk Calculator.” It is supposed to calculate whether a patient will be refused needed life-saving critical care, if critical care triage is directed. It is at the website www.STMRCalculator.ca.

A triage physician can input information about a patient who needs critical care into this short term mortality risk calculator. The calculator then coldly spits out a number that gives the patient’s triage priority score. That number will determine whether a patient is eligible for critical care they need, or whether they will be refused critical care, depending on the level of critical care triage that has been directed. During the January 23, 2021 webinar, Dr. James Downar, reportedly the author of the January 13, 2021 Critical Care Triage Protocol and a member of the Bioethics Table, stated:

“We’ve actually also got a calculator now that’s online that helps calculate these and gives the sort of –you can punch in some clinical information. It will give you the answer.”

The Government and its Ontario Critical Care COVID Command Centre and other related health bodies have never announced to the public the existence of this online calculator, to our knowledge. We have seen no indication that it has been successfully field-tested and/or peer-reviewed.

This short term mortality risk calculator is seriously objectionable. First, it wrongly and disrespectfully reduces a life-and-death decision about a seriously ill human being to a cold, digitized computation.

It risks giving triage doctors a false sense that it is the calculator that decides who lives and who dies. That wrongly diminishes a triage doctor’s needed alertness to their responsibility for their action. It is vital for triage doctors to own the triage decisions they make and feel fully responsible and accountable for them. This report later shows further concerns in that regard.

Second, this calculator creates the dangerous false impression that such a life-and-death assessment can in fact accurately and safely become an objective mathematical calculation. Medical science is far from that precise, when it comes to predicting whether a critically ill patient will die within the next year. On the January 22, 2021 edition of CBC Radio’s “White Coat Black Art” program, Dr. Michael Warner, head of the Michael Garron Hospital’s Intensive Care Unit, stated in part:

“What’s different now is we have to essentially guesstimate what would happen a year from now.”

He explained that this is not how treatment decisions are now made, and that doing this would be “very difficult to do…” because doctors will be very busy caring for patients, and not all patients will have this protocol. This head of a Toronto hospital’s ICU said candidly that he is not sure how they would action this in real life “because it’s a policy on paper…” Dr. Warner was asked how confident he is that emergency doctors can use these new rules accurately in a chaotic and stressful environment like an emergency room. Dr. Warner responded in part:

“…so it’s hard to know how we would be able to effectively use a tool that’s written on a piece of paper, where two doctors have to verify someone’s mortality risk and then decide on what to do, if there are patients everywhere, you know, potentially dying. You know, I think we need something written down on paper, so that all these stakeholders can review it and provide their input, but at the end of the day, if we ever have to use it, we may have to improvise.”

Further supporting the serious concern that that this is not a precise mathematical calculation, Dr. James Downar, reportedly the January 13, 2021 Critical Care Triage Protocol’s author, conceded during the January 23, 2021 webinar that triage physicians will be “estimating” a triage patient’s likelihood of surviving for a year after receiving critical care. Dr. Downar said:

“Ultimately this boils down to an individualized assessment for each person. This is not a checklist that applies to everybody, but simply an approach to estimating short term mortality risk, and using tools as appropriate to do that. The clinical criteria the prioritization criteria are based on published data where possible, and in some cases, based on expert opinion, based on the peer review that Andrea referenced.”

Dr. Downar also earlier said during that webinar:

“The focus of this is on the mortality risk at twelve months, not the estimated survival duration for an individual, right? So we know that it can be challenging to predict survival for individuals, but when we are looking at populations based on published data, we can I think be reasonably more sure about risks and certainly within the ranges, the broad ranges that we are talking about here.”

Third, this online calculator uses criteria that are transparently disability discriminatory, contrary to the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms. Under the heading “Frailty”, for patients over 65 with a terminal illness and expected mortality of more than six months, the calculator uses the disability-discriminatory Clinical Frailty Scale, described earlier in this report. As noted earlier, that Scale inquires about the number of activities of daily living that a patient can do without assistance, including dressing, bathing, eating, walking, getting in/out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, and handling their own finances. The calculator increases the patient’s frailty rating accordingly.

The AODA Alliance and the ARCH Disability Law Centre have amply shown the Government and the Government’s external advisory Bioethics Table that the Clinical Frailty Scale is replete with unjustifiable disability discrimination. See e.g. the AODA Alliance‘s August 30, 2020 written submission to the Bioethics Table, the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table and the ARCH Disability Law Centre’s September 1, 2020 written submission to the Bioethics Table. Neither the Bioethics Table nor the Ministry of Health, nor Ontario Health nor the Ontario Critical Care COVID Command Centre have presented any convincing arguments to disprove that the Clinical Frailty Scale is disability discriminatory, contrary to the Ontario Human Rights Code and the Charter of Rights.

That alone would be fatal to this online calculator. However, making this worse, the AODA Alliance has discovered that the online calculator also uses other disability discriminatory criteria. We have not had a full opportunity to investigate the entire calculator from this perspective. However, as an example, for “Cancer”, the calculator rates the following physical ability criteria all of which can be tied directly to a person’s disability:

  • Whether a patient is “Fully active and able to carry on all pre-disease performance without restriction”
  • Whether a patient is “Restricted in physically strenuous activity but ambulatory and able to carry out work of a light or sedentary nature, e.g., light housework, office work” –
  • Whether a patient is “Ambulatory and capable of all selfcare but unable to carry out any work activities; up and about more than 50% of waking hours” –
  • Whether a patient is “Capable of only limited selfcare; confided to bed or chair more than 50% of waking hours” –
  • Whether a patient is “Completely disabled and cannot carry out any self-care; totally confined to bed or chair” – persons in this category receive the worst rating, for getting access to critical care.

The online Calculator does not alert doctors to these as serious human rights concerns. A physician using this online calculator could commit flagrant disability discrimination, without being alerted to this, and thinking it is totally appropriate conduct.

The foregoing examples of disability discrimination contradict the clear statement of the Government’s Bioethics Table in its September 11, 2020 report to the Ford Government as follows:

“To emphasize: the existence of disability must not be used as a criterion on which to deny critical care.”

That important sentence is strikingly missing from the later January 13, 2021 Critical Care Triage Protocol. It is not known whether the Bioethics Table later retreated from that important sentence in its later secret January 12, 2021 report to the Government, which the AODA Alliance and the public have not seen.

Fourth, the Bioethics Table and the Ontario Government including its Ontario Critical Care COVID Command Centre, never consulted the AODA Alliance or, to our knowledge, other disability advocates and experts, on this online calculator. The AODA Alliance has no knowledge whether the Government or its Bioethics Table or its Critical Care COVID Command Centre ever consulted the Ontario Human Rights Commission on this online calculator.

 2. There is a Danger that Emergency Medical Technicians (EMTs ) Could Wrongly Refuse to Give a Patient Needed Critical Care Before the Patient Even Gets to the Hospital – Improper Backdoor Trickle-Down Triage

Normally, emergency medical technicians (EMTs) may start critical care supports for a patient en route to hospital, if the patient needs it. The public expects that if an ambulance arrives in an emergency to help a person, the EMTs will do all they can to help save the patient’s life. The public does not expect that an EMT would unilaterally refuse to provide a life-saving measure that the patient needs, out of some thought that a triage doctor at the hospital might later feel trapped by the law that does not allow them to withdraw that critical medical care without the patient’s consent.

Yet to our total surprise and deep worry, almost one year into the COVID-19 pandemic, the AODA Alliance learned from watching the January 23, 2021 webinar that if critical care triage is directed for Ontario, instructions may have been given by someone (we don’t know who) to frontline EMTs or may in future be given to them, to the effect that EMTS should not administer some critical care to some patients who need it. Yet such back-door or trickle-down critical care triage should not take place., Certainly EMTs should not be directed to engage in such denial of critical care where needed, absent the patient’s consent to its being denied.

Speakers at the January 23, 2021 webinar, who are involved in planning Ontario’s regime for critical care triage, raised a concern that if EMTs start to apply critical care to a patient before they reach the hospital, then the hospital would not be able to withdraw that critical care afterwards unless the patient consented to its withdrawal. This is because of the Health Care Consent Act.

During the webinar, questions were asked about using the January 13, 2021 triage protocol where a patient earlier had critical care started “in the field” (i.e. before they get to hospital). And where that patient is then brought to the hospital’s emergency room, already receiving critical care. The concern was expressed that under the January 13, 2021 triage protocol, a doctor cannot withdraw critical care from a patient who is already receiving it, unless that patient consents to its withdrawal. In response, Dr. James Downar (a central figure in the design and public defence of Ontario’s critical care triage plan) said:

“Add this to the long list of very good reasons why we should have an executive order to allow withdrawal, for allowing for equity. Because we need to, I think, decrease the consequences of people, you know, mistakenly intubating somebody who should not have been prioritized. You want to make it very easy for people to offer critical care, and not make the mistake of not offering it and only finding out later, because they made a hurried decision, that they should have. That’s what you don’t want.

The ability to withdraw is the ability to offer in marginal or higher mortality risk cases. That’s the way to look at it, right? That’s why it would result in better outcomes for everybody.

I know that the ambulance services emergency services are aware of this document. (Evidently referring to the January 13, 2021 triage protocol) We had conversations with them early in the spring. And they have a sort of surge practices already available where they are going to look at situations where, you know, certain types of resuscitation, they would not initiate resuscitation in certain scenarios. And they are aware of this document, and, to the best of my knowledge, they certainly did in springtime align their practices – Their standards would change in a way that would reflect this document.

So, for example, if we had a maximum surge, that they would not attempt certain types of resuscitation, you know, cardiopulmonary resuscitation, and lower levels of surge, they would resuscitate people only in situations like having, you know, witnessed arrest and shockable rhythm, for example.

To your point, they should be aligned, and they are, emergency services are aware.”

Dr. Downar was asked if that information would be available. He responded:

“I can’t speak for the emergency services but I can speak to them.”

If there have been any such critical care triage secret directions to EMTs or to emergency services, or if any are being designed or contemplated, we and the public do not know what these directions are, or who is designing, approving them or issuing them. We and the public do not know who would make the potential life-and-death decision to refuse a roadside patient the critical care that they need, or whether there would be any notification to the patient or their family that this backdoor or trickle-down triage is even taking place. If, as Dr. Downar suggested, such directions to EMTs are aligned with the critical care triage protocol that has been sent to hospitals for use by physicians, they would then be replete with the same disability discrimination and due process problems that the AODA Alliance and others have revealed in Ontario’s past and present critical care triage protocols.

We have seen no prior Government policy, public statement, discussion or consultation on this. The Bioethics Table never raised it with us in any of its several virtual meetings with disability advocates and experts last summer. The Bioethics Table had ample opportunity to raise this. To the contrary, all previous discussions have been premised on the idea that critical care triage decisions would be made by doctors and would be made for patients who are already in hospital. The Bioethics Table’s September 11, 2020 report to the Ford Government includes the following statement, which does not state that EMTs might take any part in deciding whether to withhold needed critical care from a patient, on the grounds that the hospital might later want not to have to continue delivering critical care to that patient:

“”Emergency medical services (EMS), nursing staff, or other staff should promptly notify a patient’s physician whenever a patient is in potential need of critical care. No assumptions should be made about whether a patient meets triage criteria; the patient’s physician is required to make this determination (see Section E for more on this process).

”      If critical care triage is initiated, this should not preclude the transfer of residents from long-term care facilities or other settings to acute care hospitals for acute care, even if their predicted short-term mortality risk would preclude them from receiving critical care.

”      Clinicians should not use prognostic tools for assessing predicted short-term mortality risk if they are not sufficiently trained and skilled with those tools.”

Here again, we do not know if the Bioethics Table withdrew that advice in its subsequent secret January 12, 2021 report to the Ontario Government. For its part, the AODA Alliance foresaw the risk of this backdoor or trickle-down triage and alerted the Government about it back on April 14, 2020. We then warned about the risk that EMTs might decline to treat a patient with a disability out of some thought that they would later be refused critical care at the hospital during a period of critical care triage.

However, it was then unimaginable to us that such misconduct could take place as a calculated direction to all emergency services. The fear was that an EMT might take such backdoor or trickle-down triage decisions upon themselves. The AODA Alliance’s April 14, 2020 Discussion Paper on Ensuring that Medical Triage or Rationing of Health Care Services During the COVID-19 Crisis Does Not Discriminate Against Patients with Disabilities included this:

“8. An ambulance is called to an apartment where a patient with disabilities has contracted COVID-19 and has severe symptoms needing hospitalization. The EMTs are reluctant to take the patient to the hospital. They figure that due to rationing or triage protocols and to that patient’s disabilities, the emergency room doctors would not likely give that patient a ventilator, due to shortage of ventilators.

The EMTs should never use the patient’s disability or their predictions about whether that might lead a doctor to refuse to treat them as a reason or factor to refuse to bring them to the hospital if they otherwise have symptoms warranting a trip to the hospital.”

Even if it were assumed that critical care triage directions should be issued to EMTs and ambulance services (which the AODA Alliance vigourously disputes), the disability community and the broader public should be properly consulted on this well in advance. The Ontario Government and any body involved with this issue should immediately make public any directions or draft directions to any ambulance services or EMTs on possible triage of critical care in advance of arriving at hospital, so the public can know what is now going on. The Government should now reveal who is formulating these instructions, who is approving them, who is issuing them, and what legal authority, if any, they have to do this.

The Government should immediately rescind any instructions that would allow EMTs or emergency services to refuse to provide critical care to a patient who needs it, and who has not agreed to it being withheld. The AODA Alliance reiterates in this context all the concerns regarding critical care triage that disability advocates and experts have been raising with the Government since last April. Supplementing these, there is a serious concern that EMTs have neither the training nor the authority to ration or triage needed critical care.

 3. The AODA Alliance Reveals the Transparently Erroneous Legal Strategy for Defending the Legality of Ontario’s Critical Care Triage Plans

 a) Unmasking the Legal Defence Strategy

The AODA Alliance has unearthed the fatally flawed legal defence strategy that the Government, its Critical Care COVID-19 Command Centre and the like have evidently crafted to fend off anticipated legal challenges to their plans for deciding which patients will be refused life-saving critical care if the COVID-19 pandemic overloads hospitals, and requires critical care triage. Critical Care Services Ontario, the Ontario Critical Care COVID Command Centre, the Bioethics Table, those leading the development and/or implementation of Ontario’s critical care triage plan, the Ontario Government, and those insurance companies and lawyers who would defend doctors and hospitals if sued, have a clear legal defence strategy. They plan to argue that they cannot be successfully sued if a patient dies from a refusal of critical care that they need, so long as the doctors and hospitals followed the January 13, 2021 Critical Care Triage Protocol

This legal defence strategy heavily relies on the January 13, 2021 Critical Care Triage Protocol ‘s title: “”Ontario Adult Critical Care Emergency Standard of Care.” If a patient dies and their family sues for negligence because they were the victims of a refusal of critical care they need during critical care triage, the hospital, its doctors and the Government would plan to argue that they cannot be successfully sued for the patient’s resulting death, because this document sets the “standard of care.” Courts should use this “standard of care “ to assess the medical professionals’ conduct.

They plan to argue that the standard of care is determined by doctors who are experts in the field, and not by lawyers or others. They would argue that the January 13, 2021 triage protocol is the result of expert medical advice and decisions by the Bioethics Table and the Ontario Critical Care COVID Command Centre that approved it. As long as doctors and hospitals stick to the January 13, 2021 triage protocol, they plan to argue that they have fulfilled their professional obligations, and are therefore immunized from being sued or the subject of complaint to the Ontario College of Physicians and Surgeons (CPSO), the body that licenses and regulates physicians.

The Government, the triage doctors and hospitals would plan to argue that the “standard of care that applies is one that is mainly based on the reasonable and accepted practice expected of a similarly trained doctor in similar circumstances. They would argue that a court relies on medical expert witnesses to identify that standard of care.

From the January 23, 2021 webinar, they clearly intend to argue that the January 13, 2021 Critical Care Triage Protocol is just such a standard of care. They would argue that it was created by medical experts for medical experts after a long period of research, investigation and consultation.

This legal defence strategy also serves the Ontario Government’s current political strategy. The Ontario Government is publicly running as far as it can from this issue. In contrast, the Quebec Government has publicly owned this issue by publicly posting a government decree that sets out the terms of critical care triage. By so recognizing, the AODA Alliance is not in any way endorsing Quebec’s Critical Care triage plan.

The Ford Government has repeatedly dodged media questions where it can on critical care triage plans. As noted earlier, the Government has refused to answer the AODA Alliance ‘s seven letters on critical care triage. The Government has not publicly discussed or debated this critical care triage issue in the Legislature, unless the Opposition asks the Government about it in Question Period.

Instead, the Government has in effect hidden behind its advisory Bioethics Table. The Government has repeatedly said that the Ministry of Health has not approved the January 13, 2021 triage protocol. To distance itself from the protocol, it claimed that that protocol instead is experts advising experts.

For example, a February 7, 2021 Globe and Mail news report stated:

“In response to inquiries from The Globe and Mail, Ontario’s Ministry of Health said in a statement that an emergency order, which would need cabinet approval, “is not currently being considered.” It also said it had not yet officially approved any triage protocol and that the bioethics table would continue to discuss the proposals with “stakeholder groups.””

By that strategy, the Government appears to be trying to duck any responsibility for any decisions made that terminate a patient’s life because they are refused critical care during critical care triage. The Government would claim that it is the Ontario Critical Care COVID Command Centre, and not the Government, that decided whether, where and how critical care triage will occur. It would claim that the Ontario Critical Care COVID Command Centre is a table of medical experts, getting advice from the advisory Bioethics Table, also a table of experts. The Government can be expected to claim that it does not have to enact a triage protocol or under law, or indeed, to do anything, but let the medical profession just do its work.

This legal strategy was discovered by studying the January 23, 2021 CCSO webinar, and the Government’s few public statements on the triage protocol. During the January 23, 2021 webinar, lawyer Daphne Jarvis, who represents hospitals defending medical malpractice cases, said:

“…and as you’ve heard, it means that the focus shifts from optimizing individual care to maximizing population health outcomes. So, that concept may be new to us, and I can’t say that we have a body of Canadian case law specifically addressing pandemic critical triage situation. But there is a body of case law and medical legal literature that is broadly speaking relevant and that supports this concept.”

She also said:

“So, as you’ve heard, the document it’s more than one document, the document which outlines the emergency standard of care represents a very broad professional and expert consensus that has been developed over a long period of time with a huge amount of work, and it’s the emergency standard of care that assumes no change in the law.”

Ms. Jarvis went on to advise:

“So in short, it’s the best way to mitigate legal risk and to focus in a good faith effort to reduce morbidity and mortality.”

We add that the term “mitigate legal risk” that Ms. Jarvis used in the preceding quotation means “avoid someone successfully suing you.”

Similarly, speaking for the Canadian Medical Protective Association which defends and insures doctors who are sued for medical malpractice, Dr. Steven Bellemare explained:

“So why is the standard of care important? That’s because the standard of care is at the heart of any medical legal matter, be it a lawsuit or College complaint or hospital complaint. If you were to face a lawsuit with regards to a choice to not provide critical care services to a patient or for instance, the court would then seek to answer the question: ‘What would a reasonable physician, of similar training and experience, have done in a similar circumstance?’ That’s ‘s how it will determine whether or not there was negligence at play. And so the question then becomes what would other docs like in Critical Care have done in Ontario at that time, not in British Columbia, not in Quebec because every province is going to have a different approach to that.

So the standard of care usually is derived from expert opinion. We have experts, who are physicians of similar training and experience in similar circumstances as you would be, who provide opinions to the court as to what they would have done in that circumstance.”

Dr. Bellemare further explained:

“So the peer experts set the standard of care and the standard of care changes over time…. There are other ways that we can get to the standard of care, and that includes looking at guidelines or protocols that are published by various regulatory bodies like the CPSO in this case, or by national specialty societies. Finally, very rarely, governments can impose a standard of care. So that’ll be the case in Quebec, for instance, where their emergency triage protocol, if it goes into effect, will be done by decree of the Minister of Health, who will say from now on, this is how we are going to decide who gets access to care.

That’s not the case in Ontario. This is why we are talking about here the emergency standard of care and that’s not chosen by luck. Because this standard of care was created by your peers. It was created with input from critical care specialists. And as such, if and when the COVID-19 Command Centre decides to decree that it will go into place, it will be de facto the way your colleagues will expect you to behave in a time of crisis. And so it will be the way to practice. It will be the standard of care and what your peers will accept.”

 b) The Legal Defence Strategy is Fatally Flawed

Several reasons show why that legal defence strategy is fatally flawed. First, that legal strategy repeatedly and erroneously uses the label “standard of care” in order to try to position the January 13, 2021 Critical Care Triage Protocol as a big shield for doctors, hospitals, and, potentially the Government itself. Yet the January 13, 2021 Critical Care Triage Protocol is in truth not a doctors’ “Standard of Care.” The fact that it uses that title, and that the January 23, 2021 webinar presenters repeatedly use that term, does not make it a true standard of care.

In the law of negligence, the concept of a “standard of care” exists for a court to use to measure whether a physician was negligent:

  1. When the doctor diagnoses a patient and decides whether that patient needs medical treatment. The doctor must not be negligent when deciding what the patient’s condition is;
  1. When the doctor decides what treatment to prescribe for the patient. The doctor must not be negligent in choosing the proper treatment to prescribe for the patient, and
  1. When the doctor is delivering a treatment to the patient that they have prescribed. The doctor must not be negligent when treating the patient e.g. when performing surgery.

The Government, doctors and hospitals rely on this “standard of care “ label and this defence strategy at their serious peril. It would be unwise for them to be lulled into a complacent sense that they have nothing to worry about, so long as they follow the January 13, 2021 Critical Care Triage Protocol and repeatedly call it a “standard of care.”

We contend that the concept of “standard of care “ does not apply to a doctor who is deliberately deciding not to give a patient critical care who is known as needing that care. That is instead a triage or rationing decision about allocating scarce public resources, denying that patient services which are covered and assured by provincial health insurance and the Canada Health Act.

This is not a situation where a doctor decides that the patient is not so sick that they need critical care. It is not a situation where the patient does not want to receive critical care. Rather, it is a given in these triage cases that the patient needs it and wants critical care.

If a patient needs critical care, a doctor’s triage decision to refuse them that care (over the patient’s objection) is not done to assess what that patient medically needs, or to deliver to the patient the treatment they medically need. Rather, it is a decision to deliberately allocate scarce resources to another patient instead.

We understand the vexing exigencies that this triage protocol tries to address. However, dressing that protocol up as a “standard of care” is incorrect, inappropriate and misleading. It is designed to secure for doctors, hospitals and possibly the Government the undeserved windfall of the maximum legal protection or immunity from lawsuits.

Second, this legal defence strategy violates the rule of law and basic democratic principles. It in effect turns the medical profession into a state within a state. Under it, democratically elected, politically accountable politicians would not make the rules on who will get a scarce government-funded resource, namely critical medical care, during triage. Instead, unelected physicians and bioethicists would decide whether there will be critical care triage, and if so, who will be refused critical care., They would decide this, behind closed doors, talking to whomever they wish, excluding whomever they wish, accountable to no one, bringing to bear no training or expertise in human rights or constitutional rights.

This wrongly pre-decides that doctors alone should make life-and-death decisions about allocating scarce publicly-funded resources, with no public accountability. Yet it is not for doctors to assign themselves this role, set the rules for their decisions, and to decide how much or how little public accountability they will have for deciding who shall be refused needed life-saving critical care. In a democracy’s publicly funded health care system, decisions on health care rationing criteria, roles and rules are ultimately the Government’s responsibility.

Ontario’s experience illustrates the dangers with this. The Government’s Ontario Critical Care COVID Command Centre secretly approved the January 13, 2021 Critical Care Triage Protocol. By this “standard of care” legal defence strategy, the Government in effect delegates the decision-making authority on this life-and-death issue to that unaccountable, secret body, without the Legislature ever granting it that authority. This is not the open and transparent approach to the COVID-19 pandemic that Premier Ford promised.

We have never been given a chance to meet with the Ontario Critical Care COVID Command Centre. On December 7, 2020, we wrote Ontario Health Minister Christine Elliott, asking who is on that body, and what their mandate is. The Government never answered.

That Ontario Critical Care COVID Command Centre no doubt relied on reports from the Government’s Bioethics Table. As noted earlier in this report, we have seen the Bioethics Table’s September 11, 2020 report, but not its subsequent January 12, 2021 report. Moreover, in its September 1, 2020 report, the Bioethics Table did not share with the Government or the Ontario Critical Care COVID Command Centre some key parts of our input– parts of our input with which the Bioethics Table evidently did not agree.

Third, that “standard of care” label, even had it correctly applied here (which it does not) cannot excuse or exempt doctors, hospitals or the Government from the serious Charter of Rights and Human Rights Code violations that the AODA Alliance and other disability advocates have raised with the January 13, 2021 triage protocol and with Ontario’s earlier March 28, 2020 triage protocol. The “standard of care” label, even if it were properly applicable here, does not immunize doctors, hospitals or the Government from their duty to comply with the Charter of Rights and the Ontario Human Rights Code.

Fourth, if the Bioethics Table gets its wish, and the Ontario Government tries to suspend the Health Care Consent Act so that doctors can withdraw critical care from a patient over that patient’s objection, the “standard of care” label, (even if properly applied here) would not exempt a doctor from the risk of committing a culpable homicide contrary to Canada’s Criminal Code by actively and intentionally withdrawing needed critical care from a patient over their objection.

Fifth, for this “standard of care” label to properly apply, it must first be shown that the physicians who developed it are in fact experts in the rationing of life-saving critical care. However, with great respect to them, they are not. They, and the Ontario medical profession have no prior expertise in rationing life-saving critical care, or in reliably predicting, for triage purposes, which patients will survive for a year after receiving critical care. This is not displaced by any bald claims that the January 13, 2021 Critical Care Triage Protocol is evidence-based.

Last summer, the Bioethics Table told us that Ontario’s medical profession has never before had to engage in critical care triage. It is our understanding that doctors are not trained to perform such critical care triage as part of their medical education. As well, neither physicians nor bioethicists must be trained in, nor claim to be experts in, fundamental human rights and constitutional law. That lack of expertise in human rights and constitutional law is amply evidenced by the various deficient critical care triage protocols and the arguments that have been made to defend them.

Sixth, it would be inaccurate to conclude that the January 13, 2021 Critical Care Triage Protocol is a compelling “standard of care” to which courts should defer, by virtue of the way it was developed. To justify it, it was said to be more than a decade in the making, the result of extensive work and consultation and reflecting the consensus of relevant expert opinion. During the January 23, 2021 webinar, that over-inflated and exaggerated claim was presented to attendees to support a call for frontline physicians to feel comfortable and safe when using that protocol. Dr. Andrea Frolic, a member of the Bioethics Table and identified as a key player in the January 13, 2021 Critical Care Triage Protocol’s development, said she would explain how the critical care triage protocol came about

“…to reassure you that this isn’t some form of moral improvisation but it’s a practice standard that is more than a decade in the making.”

It is an exaggeration to claim that this triage protocol was over a decade in the making”. The January 23, 2021 webinar was told that some work was done on this topic over a decade ago after the SARS outbreak. After that, no action on it was described at that webinar until last February. One year ago, when the COVID-19 pandemic was first emerging, the original March 28, 2020 critical care triage protocol was prepared in a rush and, we add, in secret.

The public was not given a chance for input into it. The public was not told that a critical care triage protocol was being developed, or that it had been sent to hospitals. The public only learned about it when it was leaked to some within the disability community. That led it to be publicly condemned by over two hundred disability organizations as disability discriminatory.

During the January 23, 2021 webinar, Dr. Andrea Frolic said that the January 13, 2021 Critical Care Triage Protocol was the result of consultations with the Ontario Human Rights Commission and community groups. This omits critical facts. For example, it leaves out the fact that the Ontario Human Rights Commission and community groups like the AODA Alliance publicly objected to key parts of the triage plan and the secretive way it has been developed.

After months of delay, the AODA Alliance and some other disability organizations got a chance to give input on an earlier draft of the critical care triage protocol last summer. It was good to have that opportunity. However it is now clear that several important issues, addressed in this report and elsewhere, were not identified with us for comment at that time e.g. the possibility of directions to EMTs to withhold critical care from some patients who need that care.

It is good that in its September 11, 2020 report to the Ontario Government, the Bioethics Table incorporated some of the input from disability advocates. However, the Bioethics Table rejected a number of key points that disability advocates presented. It similarly rejected key points that the Ontario Human Rights Commission publicly emphasized.

The Bioethics Table gave no reasons for doing so. The Bioethics Table’s September 11, 2020 report to the Government does not pass on to the Government the important points of input from the disability community and the Ontario Human Rights Commission that the Bioethics Table evidently rejected. Of the points that the Bioethics Table had incorporated, some did not find their way into the later January 13, 2021 Critical Care Triage Protocol. As noted earlier, the Government and its internal Ontario Critical Care COVID Command Centre did not consult us or the public on this topic. That meant that our input in key respects died before reaching those making the actual decisions on the design of Ontario’s critical care triage plan.

Seventh, any effort by the Ford Government to distance itself from this protocol is misleading and purely cosmetic. The Government appointed its advisory Bioethics Table. The Government undoubtedly created the Ontario Critical Care COVID Command Centre that approved the January 13, 2021 Critical Care Triage Protocol. The Ontario Ministry of Health is a partner in Critical Care Services Ontario. CCSO ran the January 23, 2021 webinar, and clearly is playing a role in the development and implementation of Ontario’s critical care triage plan.

Moreover, during that webinar, Dr. Andrea Frolic acknowledged that the earlier March 23, 2020 critical care triage protocol (the predecessor to the January 13, 2021 Critical Care Triage Protocol) was created under the leadership of herself, Dr. James Downar and others, and was then sent to all hospitals by Ontario Health. Ontario Health is a creation of and part of the Ontario Government. During the January 23, 2021 webinar, Dr. Andrea Frolic said:

“…So under the leadership of James Downar, myself and others, a draft document was published by Ontario Health and sent to health care organizations back in March.”

  4. Merely Proclaiming that Human Rights Should Be Respected Is No Defence to a Disability-Discriminatory Triage Protocol

Part of the legal strategy to defend the January 13, 2021 Critical Care Triage Protocol is to argue that there is no intent to discriminate, and that to the contrary, the protocol states that human rights are to be respected in the triage process. For example, the February 7, 2021 Globe and Mail quoted a key member of the Bioethics table as follows:

“Andrea Frolic, an ethicist and the director of the medical assistance in dying program at Hamilton Health Sciences, who served on the bioethics table until last September, said no protocol is perfect, but the current draft includes safeguards and is designed to protect human rights.

It focuses on the individual patient’s risk of dying, she said, not any disability.”

It is good that the full, lengthy January 13, 2021 triage protocol document (over 30 pages) includes some invocations of human rights. However, this does not immunize that protocol and hospitals or doctors who refuse a patient needed critical care from challenges under the Ontario Human Rights Code and/or the Charter of Rights.

First, the protocol’s references to protecting human rights provide no defence., This protocol first proclaims a commitment to human rights, but then goes on to direct human rights violations, e.g. by using the Clinical Frailty Scale. The Ontario critical care triage plan also urges use of the disability discriminatory Short Term Mortality Risk Calculator, addressed earlier in this report.

Second, it is no defence for the protocol’s authors to proclaim that there was no intent to discriminate. It is well-established that it is not necessary to prove an intent to discriminate, and that the absence of an intent to discriminate is no defence to a human rights or Charter equality rights complaint. We explained this in detail to the Bioethics Table last summer.

Third, as far as we have found, there is no explanation of human rights concerns or how to operationalize them in the triage process, in the all-important short checklists accompanying the January 13, 2021 triage protocol (which we expect is all of that document that busy triage doctors will have time to read) or in the online Short Term Mortality Risk Calculator (which, as detailed above, uses disability-discriminatory criteria) or the January 23, 2021 training webinar that instructed over 1,100 people including frontline doctors on using the January 13, 2021 critical care triage protocol and calculator.

In short, the January 13, 2021 critical care triage protocol’s statements about human rights are little more than window-dressing. They are aimed at outside bodies, seemingly to create the image that human rights are being protected in the critical care triage process.

At the same time, the core messaging to triage doctors is bereft of human rights content. It gives disability-discriminatory instructions to triage doctors. Those triage doctors are not told, for example, that the Bioethics Table, in its earlier September 11 Report, stated the following:

“However, the Bioethics Table learned through its consultation with disability rights experts that the use of CFS in the context of critical care triage raises significant concerns that persons with disabilities, many of whom may need assistance with activities of daily living, would score higher on the CFS than an able-bodied person and that this could lead to the over-triaging of persons with disabilities.”

 5. There is an Even greater Risk that Each Triage Doctor Can Become a Law unto Themselves than the AODA Alliance Previously Identified

As noted earlier, the AODA Alliance previously showed how the January 13, 2021 Critical Care Triage Protocol risks making each triage doctor a law unto themselves. The January 23, 2021 webinar reveals that this risk is even greater. This is so even though attendees at that webinar were erroneously told the opposite. Dr. Andrea Frolic said:

“It is protocol-driven rather than really leaving it up to the discretion of the bedside clinician.”

First, during that webinar, Dr. James Downar recommended that in advance of having to make critical care triage decisions, physicians should survey their hospital case load to identify those patients who might be likely to be subject to triage. He advised doctors to assess those patients’ short term mortality risk in advance. This is so that if those patients later get sicker and need critical care, those assessments will already be completed. Dr. Downar stated:

“So many people on this call who may not operate in the critical care area might be asking, okay, when to assess criteria. Do you only wait until they meet eligibility criteria. And it’s probably not a good idea to wait. Again, you should not be making triage or deprioritization decisions for people who have not had full assessments done. Informal or casual assessments may lack rigour, and they can anchor future decision-making, and so it’s probably best to avoid these sort of informal assessments.

But early assessments before they become critically ill will be very helpful for things like bed planning or establishing what information you might need to get some more certainty. So probably a good idea to try to get ahead in many cases, in some certain situations, and so this is less time pressure.

And so again you also don’t want to it on literally everybody, because these are not going to be easy conversations and they may compromise the therapeutic alliance and cause frustration. And it’s probably not feasible to do it for literally everybody admitted to hospital. So we’re just going to propose a bit of an approach for how to maybe prioritize your assessments. …

…I would say you’d probably best to focus on people who you think are most likely to deteriorate in the near future, or people who are most likely to actually be de-prioritized, depending on the level of triage that you’re at. So, everybody under your care, if for example you’re an MRP (i.e. most responsible physician) on the ward or in an emerge, it’s not a bad idea to think about just quickly scanning over and doing an initial assessment yourself of the criteria, and saying okay I think this person might meet Level 1 criteria for de-prioritization. I should probably, and if we’re at Level 1, triage now, I should probably take everybody who I think might be a Level 1, and make sure that I do formal assessments on those individuals first, so that if there is a decision to be made, it will be less time-pressure, and do a full assessment on those individuals.”

This may at first seem efficient. However, it gives a huge unmonitored, unaccountable and potentially arbitrary discretion to each doctor to unilaterally decide which patients to subject to an early short term mortality assessment. They could thereby formulate early first impressions of their patients for triage purposes.

Each doctor is left to decide for themselves who to subject to this pre-screening, and by what process. Once so pre-screened, a patient that is rated to have a high mortality risk might find themselves singled out for earlier triage from critical care, to their detriment, simply because they were unlucky enough to have a doctor earlier decide to pre-screen them.

The doctor need not forewarn their patients that they are being subjected to this pre-screening. There is no due process for patients to guide or constrain this process.

As a second way that triage doctors risk becoming a law unto themselves, during the January 23, 2021 webinar, Dr. Steven Bellemare said the intent of the January 13, 2021 triage protocol is to remove subjectivity from triage decisions. However he conceded that different people can read a document differently. From this, we conclude that there is in the protocol the very kind of subjectivity or wiggle room that can lead to different doctors taking different approaches to the same patient profile. Dr. Bellemare said:

“One of the key issues to consider is to think about whether or not the people in your hospital, your team, have clarity with regards to the intention of the emergency standard of care, and with regards to its application. And, you know, it’s meant to standardize the approach, but again, even though you may read the same document, people may think of it differently, and interpret it differently.

It goes a long way to help make sure that things are standardized and protocolized, but I think we have to think seriously about the value of simulation, in applying this protocol, and if you play a leadership team in your hospital, I would invite you to think about when is the time to actually think about running some drills, to apply this protocol. Because the time to start thinking about these issues is not when it is decreed that it is going into place, into application. It’s right now, which is why we’re having these conversations.

And so again, whether you’re looking at it from the point of view of patient safety and equity or even from the point of view of medical legal risk, the intent of this protocol is to try to take as much subjectivity out of the hands of the individual docs and to make it as clear and standardized for everyone. And so I invite you to think about that, and even as to whether or not your hospital will have a team looking at these decisions or whether or not, because the protocol allows for deciding at the individual level, will these decisions be made individually by a treating physician or by a team.”

The element of subjectivity in this protocol contributes to each triage doctor becoming a law unto themselves, whether or not they are ever aware of this. It corroborates Dr. James Downar (reportedly the protocol’s author) telling us at meetings of the Bioethics Table last summer that there is subjectivity to the application of the protocol’s Clinical Frailty Scale, as the AODA Alliance confirmed in writing in its August 30, 2020 written submission to the Bioethics Table. That written submission states the following, which was immediately made public and whose accuracy has never been disputed:

“In discussions with some members of the Bioethics Table, Dr. James Downar candidly acknowledged that there is subjectivity in how the CFS would be applied to a specific patient. That is fatal to its use for critical care triage.”

This is also consistent with the opinion of the Michael Garron Hospital’s head of intensive care Dr. Michael Warren, quoted earlier in this report, who told CBC Radio with reference to this protocol that despite it, doctors may “guesstimate” and “improvise” when it comes to assessing whether a patient is likely to survive for more than one year. Of necessity, guestimates and improvisations provide ample room for subjectivity on the part of a well-intentioned triage doctor.

As a third development that contributes to each triage doctor becoming a law unto themselves, the January 23, 2021 webinar attendees were instructed that a patient’s admission to critical care is on a trial basis. Dr. Downar stated:

“For those who do meet prioritization criteria and again are admitted, they are admitted for a trial of critical care. Obviously, as we all would say, it is a trial, and you communicate appropriately.”

We dispute this characterization of critical care for a patient. Who is the judge of the “trial”? How long does the trial last? What appeal would there be if there is a dispute between patient and doctor over the “trial’s” duration, conduct or results? To characterize admission to critical care as a “trial” gives a sweeping, open-ended discretion to doctors to apply their own subjective standard to that “trial”.

As a fourth subtle feature that contributes to each triage doctor becoming a law unto themselves, the January 13, 2021 Critical Care Triage Protocol is ambiguous on the presumptions and burden of proof that a triage doctor should apply when making an assessment of a patient’s likelihood of surviving for at least a year after admission to critical care. Should the doctor presume that the patient will survive that long unless their clinical assessment proves otherwise? And if so, should the doctor not exclude the patient from critical care unless the doctor is certain that the patient has less than a year to live, upon admission to critical care? Does the patient being assessed for triage get the benefit of the doubt?

During the webinar, the room for a lack of clarity on this became clear to us, though not necessarily to the webinar’s attendees. Dr. Downar stated:

“It is entirely possible that you may not be certain and I think you need to be up-front and honest about that, right? If there’s a situation where you just don’t know, you don’t have enough information, it’s important to indicate that, and then also indicate that probably the person should be receiving critical care pending a re-assessment if it would be otherwise indicated, but also be very clear about what information you might need, and set on a path of trying to gather that information to resolve the uncertainty.”

While that describes Dr. Downar’s view, absent clarity on this, different doctors are free to set their own rules in their own minds on which presumptions to make and on the degree of certainty to require. That in turn gives each triage doctor even more discretion, further making each a law unto themselves.

One might at first think that it is not appropriate to talk about burdens or standards of proof when it comes to medical decisions. However, these are highly relevant. A patient’s access to life-saving critical care is on the line. Triage doctors are here being assigned to allocate this scarce resource, applying this triage protocol. That makes features like the burden and standard of proof entirely central for decisions that doctors would make.

A fifth subtle way that doctors can become a law unto themselves, each deciding critical care triage issues based on their own sense of who should get triaged out, emerges from the candid though seriously disturbing recognition during the January 23, 2021 webinar that if doctors are not given the power to withdraw critical care from a patient over their objection, some doctors will be more reluctant to give some patients needed critical care in the first place. Dr. Andrew Baker, incident commander on Ontario’s Ontario Critical Care COVID Command Centre gave this as a reason why the Ford Government should suspend the Health Care Consent Act – a measure to which we strenuously object.

What Dr. Baker described would be a subtle form of covert critical care triage. In it, a doctor departs from their traditional role of only deciding who gets critical care by an assessment of whether that patient needs it. There is no articulated standard to govern this. Thus, how much each triage doctor would do it is left to them to decide.

 6. Ontario’s Critical Care Triage Plan Risks Unfairly and Arbitrarily providing Different Amounts of Oversight of Triage Decisions from Hospital to Hospital

The AODA Alliance previously showed that the January 13, 2021 critical care triage protocol provides no due process for patients whose lives are at risk during critical care triage. Making this worse, we learned from the January 23, 2021 webinar that each hospital is free to decide whether critical care triage decisions will be made by two doctors or by a more thorough and extensive review team. As quoted at greater length earlier in this report, Dr. Steven Bellemare told the January 23, 2021 webinar attendees:

“And so again, whether you’re looking at it from the point of view of patient safety and equity or even from the point of view of medical legal risk, the intent of this protocol is to try to take as much subjectivity out of the hands of the individual docs and to make it as clear and standardized for everyone. And so I invite you to think about that, and even as to whether or not your hospital will have a team looking at these decisions or whether or not, because the protocol allows for deciding at the individual level, will these decisions be made individually by a treating physician or by a team.”

The amount of scrutiny and oversight of critical care triage decisions therefore could arbitrarily vary from hospital to hospital. Patients facing such a danger to their life deserve greater and more consistent protection. The level of scrutiny should not be left to each hospital to decide. There is no indication that the Government will monitor these inconsistent practices from hospital to hospital around the province, or will report on them to the public.

  7. The Training for Frontline Critical Care Triage Doctors Wrongly Minimizes the Enormity of Their Critical care Triage Decisions and the Importance of Being Legally Accountable for Them

It is very harmful that the January 23, 2021 webinar minimized and downplayed for triage doctors the enormity of their decision to deny a patient needed critical care. It also harmfully encouraged them not to be mindful of the possible legal consequences of refusing a patient needed critical care. It is inevitably in the nature of critical care triage that if triage occurs, some patients will thereby die. However, it is harmful to dilute, downplay or minimize the doctor’s role in this. It is also harmful to minimize the importance of being alive to their legal accountability for it, or to use incorrect or misleading euphemisms to describe a triage decision.

As a first illustration, it was wrong for Dr. Andrea Frolic to encouraged doctors not to refer to a withdrawal of critical care from a patient as a “withdrawal” of care. Yet that is what it is. Dr. Frolic said:

“I really appreciated the comment in the Q and A that we should stop using the term ‘withdrawing care’. I really appreciate being called on, on that, because in fact care should never be withdrawn from patients. But certain treatments specifically invasive treatments might be withheld or withdrawn in this context, and I think one of the ways that we can continue to form trusting alliances with patients and families is by emphasizing what we will continue to. We will continue to medically manage patients. We will continue to palliate patients. We will continue to offer psycho-emotional support and comfort care.”

To a critical care patient who needs and is receiving critical care, a physician suddenly taking that critical care away from them over the patient’s objection is “withdrawing care.” The fact that the patient would then be offered a lesser level of care which can’t save their life does not change the fact that there has been a withdrawal of the very care they need and want to try to save their life.

As a second illustration of this, Dr. James Downar, reportedly the January 13, 2021 Critical Care Triage Protocol’s author, incorrectly said that refusing critical care should not be called an “exclusion.” He preferred to euphemistically describe this as prioritizing. Dr. Downar said:

“Again, we’ve looked over a number of different approaches to how to implement or how to protocolize a triage approach, and we tried to pull together, you know, sort of different ideas about, you know, sort of how to, you know, decide about risk, and benefit and how to try to make a system that that would be proportionate to need rather than more categorical in nature, while still being somewhat objective and rigourous. And this is what we came up with, was essentially to try to determine a prioritization system, and to be very clear, this is prioritization, not exclusion, right? And so we are at the point of running out of resources, nobody is excluded ever. They’re just a matter of prioritization.”

Yet contradicting this, if a patient is ranked too low for purposes of critical care triage, they would be excluded from receiving critical care. To the patient who is refused care, they don’t feel “prioritized”. They feel that they have been refused critical care and that they have been excluded from refusing critical care. Indeed, Dr. Downar later talked during the webinar about the fact that if critical care triage is to occur, certain groups of patients will be excluded or not given critical care, depending on the level of triage that is proclaimed.

As a third illustration, the webinar wrongly and subtly downplayed a triage doctor’s responsibility for the enormity of what a triage decision means for a patient who is denied needed critical care. Frontline doctors were told in effect in connection with their decision to deny a patient needed critical care that they should not feel a sense of “agency.” (I.e. that the doctor’s refusing a patient needed critical care, is an agent that contributes to the patient’s death) This was said to be because it is the pandemic and patients’ health problems that are killing people. During the January 23, 2021 webinar, Dr. Andrea Frolic said:

“And I think one of the most challenging things it puts us in the position very uncomfortably of imagining that we have personal agency in the life or death of patients that we are applying this protocol to. Of course, this is in some ways an illusion, because it is the pandemic that forces these decisions upon us as well as the underlying conditions of the patients and the resources available to us. But nevertheless, it can create a real sense of real moral, hazard and injury as we anticipate being the ones to ultimately render a decision.”

Dr. Frolic also stated:

“There’s no getting out of the experience of moral injury for us who are facing this pandemic, but our hope is that it can be mitigated by the knowledge that this is going to prevent deaths and that it is a standard of practice that is going to be used across the province. It’s very efficient to use once mastered and it allows you in conversations with patients and families to de-personalize the decision, and really to focus on caring for your patient knowing that in the end, you are not the one making the life-and-death decision based on this protocol.”

This dangerous and erroneous message is further driven home by the online Short Term Mortality Risk Calculator that the webinar encourages triage doctors to use. As addressed earlier in this report, that calculator depersonalizes and dehumanizes the critical care triage process by letting a triage doctor think that they just need to key into a website in their observations of a patient and then the calculator will decide on the patient’s short term mortality risk. That signals to the doctor that it is not the doctor’s ultimate decision, but that of an online calculator.

Of course, a patient’s physician is not responsible for the fact that the patient needs critical care to live. However, that does not reduce the fact that if a doctor decides to refuse critical care to a patient who needs and wants it, the physician’s decision contributes to accelerating that patient’s death.

It is important for any doctor making a life-and- death critical care triage death decision to feel a keen sense of responsibility for it, heightened by their awareness that there can be real legal consequences for it. Yet to the contrary effect, and as a fourth illustration, the January 23, 2021 webinar harmfully but authoritatively undermined any such sense of personal responsibility and legal accountability. The law exists to help make professionals like physicians feel that they can be held accountable for their actions. Yet speaking for the Canadian Medical Protective Association (CMPA), the company that provides physicians’ medical malpractice insurance and that funds their defence, Dr. Steven Bellemare told doctors in substance that as long as they follow the January 13, 2021 triage protocol they should not worry about being sued. Dr. Bellemare said:

“With that said, the message, the key message that I want you to hear today is that the CMPA is there for you. …We’ve always been there for you and we’ll continue to be there for you. So my message is really: Don’t worry about the potential for medical legal problems. Don’t worry about the potential for College complaint or a lawsuit, because sometimes, despite your best efforts, they can still happen. We will not let you down. We’ll be there to protect you at those moments.”

 8. A Substantially Incorrect Idea of “Equity” Was Presented to Frontline Doctors Being Trained to Make Critical Care Triage Decisions

The AODA Alliance raises a serious concern with the misunderstanding of “equity” during training given to frontline doctors on how to implement critical care triage in Ontario. During the January 23, 2021 webinar, presenters made several unparticuarlized references to the importance of “equity” in the critical care triage process. However, the only specific description of an “equity” concern was given by presenter Dr. Andrea Frolic. She said that if doctors cannot unilaterally withdraw critical care from a patient who is already receiving it, this could create an inequity between some patients already receiving critical care on the one hand, and patients in the lineup to get into critical care on the other. Dr. Frolic stated:

“So we want to recognize we are using the word triage to describe the situation about the allocation of a scarce resource in a way that is fair and transparent and equitable, and in alignment with this standard. So the STMR (i.e. the short term mortality risk ) and the tools are basically identical between the emergency standard of care and a protocol that would include the provision to allow for the rare occasion when withdraw of life-sustaining treatment in the ICU would be required without the consent of the patient and family.

To allow that particular aspect of the Health Care Consent Act would need to be altered by an executive order of Cabinet, and it was felt that while that executive order is not currently in place, it was very important to begin to socialize the emergency standard of care, the STMR tools, and to prepare our communities, our health care colleagues and health care system for implementation, whether or not the executive order comes down.

But there is a lot of concern around the province among clinical colleagues and advocates around really ensuring that there is equity in the application of this standard, recognizing that without the executive order, it could introduce inequity, where it would only apply to people waiting for critical care, or people who become critically ill later, and it doesn’t apply to people who already had the benefit of critical care, who happen to sicken earlier and are already in the ICUs there are many conversations happening with members of our Government and Critical Care Command Centre and other stakeholders to really try to work out how to proceed. But I think the important thing at this point is to continue to socialize the emergency standard of care, get familiar with these tools, prepare your organizations and your regions for implementation, and to stay tuned as Dr. Baker has indicated that when this document or this process does get triggered, there will be clear direction around how it gets implemented, where it gets implemented, and whether it is the emergency standard or the protocol that includes patients already in ICU.”

Yet this is not an actionable equity, equality or human rights issue under the Ontario Human Rights Code or the Charter of Rights. It is bad enough that doctors were not trained on true human rights issues that the Ontario critical care triage plan raises. It makes things worse that they are misdirected into this so-called “equity” issue which is far removed from the core equality and equity issues that should be their priority.

This misunderstanding was exacerbated during this webinar when Dr. Steven Bellemare told frontline doctors, being trained to conduct critical care triage, that the aim is to treat all patients the same when it comes to critical care triage. Yet the Supreme Court of Canada has made it clear for decades that at times, treating all people the same can itself result in unlawful discrimination. Similarly, Dr Bellemare said:

“ As Daphne was mentioning, not only is this emergency standard of care an important step in decreasing the medical legal risk that you might face as a physician or even that a hospital might face, but more importantly it’s also a critical way to ensure that every patient has a just, equitable and consistent access to a limited resource, which is critical care. And so by enacting an emergency standard of care, essentially, we’ll be making sure that everyone in Ontario on a population basis gets treated the same way.”

 9. Some of Those Central to the Planning for Critical Care Triage in Ontario Call for Openness and Transparency

Contradicting the Government’s relentless secrecy that has surrounded Ontario’s critical care triage plans over the past year (described above), medical leaders in the development and implementation of Ontario’s Critical Care Triage Plans have stressed the importance of openness and transparency in the approach to critical care triage in Ontario. For example, at the January 23, 2021 webinar, Dr. Andrew Baker, incident commander on the Government’s Ontario Critical Care COVID Command Centre, said:

“I think it’s exceptionally important for our group and the system in general to be completely transparent. More problems are created by the appearance or the actual withholding of information than are created by sharing it openly.”

 10. The Health Ministry Still Refuses to Talk to The Disability Community About Critical Care Triage Plans, But is Clearly Talking to the Health Sector and Their Insurance Companies

From the January 23, 2021 webinar, we discovered that the Ford Government is in direct discussions with the health care sector, including with the insurance companies that insure hospitals and physicians for lawsuits for negligence and malpractice. We understand that the aim is to secure the maximum protection for doctors. Speaking for the Canadian Medical Protective Association, Dr. Steven Bellemare said:

“ And be aware that the CMPA is always working with governments and with HIROC which is the insurance company for the hospitals, about this issue. We’re in constant communication. We make representations on your behalf to make sure that if and when this goes into place, you’ll have the best protections possible.”

This is consistent with the troubling agenda on this issue voiced by the Government-appointed Bioethics Table. Its September 11, 2020 report to the Ford Government on critical care triage called for triage doctors to be protected from liability for their triage decisions. Yet as noted earlier in this report, those making such life-and-death decisions should never feel that they are immunized from legal responsibility for their decision, whatever they do. That report recommended:

“The following steps should be immediately taken in order to further develop and implement an approach to critical care triage in the context of a major surge in demand in Ontario:

…Ensure liability protection for all those who would be involved in implementing the Proposed Framework (e.g., physicians, clinical teams, Triage Team members, Appeals Committee members, implementation planners, etc.), including an Emergency Order related to any aspect requiring a deviation from the Health Care Consent Act.”

 Part IV Conclusion — Doctors, Hospitals and Emergency Medical Services, Beware the Protocol, Directions and Training You Have Been Given on Critical Care Triage

Physicians, hospitals, emergency medical services and others should all beware the protocol, directions and training in Ontario on critical care triage. These all raise serious human rights and constitutional concerns. They follow them at their peril.

The AODA Alliance and other disability advocates have unsuccessfully tried to raise many such concerns with the Ford Government and with its advisory Bioethics Table. The Health Ministry won’t talk to the AODA Alliance or answer its detailed letters that raise concerns in this area. The Bioethics Table in substance rejected key parts of our advice, gave no reasons for doing so, and did not even communicate to the Government our advice that it rejected in its September 11, 2020 report to the Government.

Similarly, the Government’s Ontario Critical Care COVID Command Centre, which appears to be calling the shots on when and where critical care triage would occur, and how it is to be conducted, has similarly not spoken to us to get our input. It approved the seriously deficient January 13, 2021 Critical Care Triage Protocol.

It would be unwise for anyone to rely on the deeply-flawed legal defence strategy that has been formulated to defend the January 13, 2021 Critical Care Triage Protocol and those who implement it. The paper trail showing the serious problems with the Ontario plan for critical care triage is very public. It has been shared widely with the media.

It would similarly be very unwise to rely on the core messages conveyed to frontline doctors and hospitals in the January 23, 2021 webinar. That webinar tried to give its audience a strong sense that doctors and hospitals can with great confidence use the January 13, 2021 Critical Care Triage Protocol and rely on it as a defence to any legal responsibility for any deaths of patients that result. That webinar’s troubling message was that doctors should stick together as a team in this critical care triage effort, especially in the face of the expected anger and upset that will come from patients who are refused critical care and their families.

For example, the webinar’s co-host David Neilipovitz said this regarding the January 13, 2021 Critical Care Triage Protocol in the webinar’s introduction:

“We want you all of you to have reassurance in how it was created, with equity, fairness, proportionality, autonomy, accountability and other underlying principles directing its creation.”

Those watching that webinar would not have any idea that serious human rights and constitutional objections have been raised by disability advocates and by the Ontario Human Rights Commission to Ontario’s plan for critical care triage. They would have no idea that these have either been rejected or have not even been considered by those approving that plan, and that no reasons for rejecting these concerns have been given.

For example, the webinar’s 1,100 viewers would have no idea that serious human rights concerns about the use of the Clinical Frailty Scale as a triage tool have been raised by the AODA Alliance, by the ARCH Disability Law Centre, by the Ontario Human Rights Commission and by others. If physicians use the critical care triage short checklist or the online Short Term Mortality Risk Calculator, they will have no idea about these concerns, and will not be alerted to any human rights considerations that should come into their minds.

Doctors, hospitals and others should be worried about the seriously flawed legal defence strategy that has been formulated to respond to human rights and constitutional concerns, such as those raised by disability advocates. By this strategy documented earlier in this report, the January 13, 2021 Critical Care Triage Protocol will offer the world an outward-facing proclamation of a commitment to respecting human rights. “We are human rights-focused people,” Dr. James Downar told TVO’s The Agenda with Steve Paikin in a broadcast recorded on the day the January 13, 2021 Critical Care Triage Protocol was being sent to all Ontario hospitals.

Yet, a very different picture is painted by the key inward-facing tools that frontline doctors will use in busy emergency rooms during the chaos that would ensue if COVID-19 overloads hospitals so much that critical care triage is required, and the webinar that trains them on how to use those tools. The January 13, 2021 Critical Care Triage Protocol’s short critical care triage checklist, the Short Term Mortality Risk Calculator and the January 23, 2021 webinar that gives training on how to use them says nothing whatsoever about human rights, with one misleading exception. The webinar reports to attendees that the Ontario Human Rights Commission and advocacy groups were consulted in the protocol’s development, as if to boost that protocol’s dependability, without also explaining that the protocol includes features that the Ontario Human Rights Commission and advocacy groups had opposed. During the January 23, 2021 webinar, Dr. Andrea Frolic said:

“…and so in the intervening months there has been very careful relooking and examination and redrafting of that early version to really align with professional ethics and principles. It’s meant extensive stakeholder engagement with the Ontario Human Rights Commission, advocacy groups and community stakeholders, as well as consultation with medical experts to really refine the core tool of this standard of care which is the Short Term Mortality Risk assessment.”

That webinar’s discussion of the law primarily as focused on “risk management”. As noted earlier, that is a euphemistic way of saying the risk that a doctor and/or hospital may get sued if a patient dies as a result of refusing them life-saving critical care they need. There was no discussion of the patient’s legal rights. This is a distorted one-sided perspective.

That webinar lulls attendees to think that the critical care triage protocol has been thoroughly lawyered, that a defence is available for its users, that maximum legal protections for them is being discussed with the Ford Government, and that they in substance need not worry about lawsuits. That is misleading and dangerous, from the perspective of patients. For example: Dr. Andrea Frolic said

“The CPSO has already come out publicly to support this emergency standard, if required. It has undergone extensive legal review by multiple legal experts. It is a peer-reviewed and evidence-based standard, and Dr. James Downar, who follows, will speak to the development and its enactment.”

Of the two lawyers and one CMPA doctor who jointly presented at the January 23, 2021 webinar, none had ever discussed with us any of the constitutional, human rights or other concerns that the AODA Alliance and other disability advocates have been raising over the past ten months with Ontario’s critical care triage plan. None of their comments during this webinar responded to or even mention any of these concerns.

Webinar attendees were repeatedly told that the January 13, 2021 Critical Care Triage Protocol incorporates principles of fairness, equity and ethics, among other things. Attendees were not told that disability advocates like the AODA Alliance disputed this, and have raised the serious concern, among other things, that it is utterly lacking in due process or procedural fairness for patients.

That webinar did not encourage provision of due process for patients and families facing the prospect of critical care triage. The webinar’s discussion of dealing with patients and families focused on clarifying during a patient’s admission to hospital if patient and family want critical care, and if not noting it on the file. It focused on giving the patient and family the bad news and reasons for it, once a triage decision was made to their detriment. There was nothing about getting the patient’s input during the triage decision-making deliberation.

That webinar properly conceded that there is a risk of triage doctors acting on unconscious bias when making critical care triage decisions in the absence of a proper triage protocol. However, in its effort to market the January 13, 2021 Critical Care Triage Protocol to frontline doctors and hospitals, it creates the incorrect impression that that protocol eliminates the danger of implicit bias. Dr. Andrew Baker, incident commander on the Government’s Ontario Critical Care COVID Command Centre, said:

“And then of course if we don’t have a plan that has all the benefits that is included in this one, there’s the potential for implicit bias and divergent approaches.”

That webinar encourages doctors around Ontario to now run simulations of critical care triage decisions, in order to become familiar with using the January 13, 2021 Critical Care Triage Protocol. From the simulation example provided to the AODA Alliance and other disability advocates last summer at our request by the Bioethics Table (lead by Dr. James Downar, there is much room for all Ontarians to worry. At the very least, each hospital should immediately make public the content and results of such simulations. The Ford Government should track these, document the extent to which they lead to consistent or inconsistent results, and immediately make that all public in real time.

No doubt, frontline doctors do not want the responsibility of deciding who lives and who dies during critical care triage. There is no suggestion here that they do. However, that does not diminish any of the concerns that this report identifies.



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If the Ford Government’s Cabinet Were to Pass an Order Letting Doctors Withdraw Critical Medical Care from a Patient Over the Patient’s Objection, It Would Be Recklessly Tap-Dancing in a Constitutional Minefield


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

If the Ford Government’s Cabinet Were to Pass an Order Letting Doctors Withdraw Critical Medical Care from a Patient Over the Patient’s Objection, It Would Be Recklessly Tap-Dancing in a Constitutional Minefield

February 1, 2021

            SUMMARY

Is the Ford Government on the verge of trying to do a dangerous tap dance in a constitutional minefield? Imagine this scene: In the days ahead, a somber Premier Doug Ford appears at his televised COVID-19 news conference. His voice is very serious. His face looks terribly distressed.

“I must today announce a drastic measure that the COVID-19 emergency requires us to take,” he might say. “We have tried everything to avoid this for the past twelve months, and have taken every step short of this drastic new step I must announce today.”

Imagine him then announcing that his Cabinet has passed some sort of executive order or regulation that temporarily suspends Ontario’s Health Care Consent Act. That legislation forbids a doctor from withdrawing life-saving medical care from a patient, without the consent of the patient or, if incapacitated, their substitute decision-maker. It provides a process for the Consent and Capacity Board CCB to be engaged in case of a dispute.

One could imagine Premier Ford saying that the Government does not want to do this, but it was recommended by its Bioethics Table, a panel of medical and bioethics experts. “We have no choice.”

The AODA Alliance wants to be 100% clear that as far as we know, the Government has not yet done this. We and, no doubt, the Government all hope it does not happen. However, we must now turn our minds to this possibility. This is because the January 21, 2021 reported that the Ford Government’s external advisory Bioethics Table recommended to the Government that it should take just such a step. The article was entitled “Ontario urged to suspend need for consent before withdrawing life support when COVID crushes hospitals.” Neither the Government nor the Bioethics Table has denied this report, to our knowledge.

Whether or not such an order or regulation is a good thing to do, there is ample reason to seriously question whether it is something the Ford Government can do at present, by Cabinet simply passing some sort of regulation or executive order. In This AODA Alliance Update, we explain why. The ARCH Disability Law Centre released a public statement on January 28, 2021 which raises serious concerns, based on its expertise in disability law.

The Ford Government is not discussing this issue in public. Whatever it is discussing, it is taking place behind closed doors.

Issues we raise in this Update will be a matter of serious concern both for patients and doctors. Doctors’ well-known Hippocratic oath is absolutely central to their professional and ethical duties and their sense of mission. That oath requires every doctor to swear or affirm, among other things, that they will “do no harm”. How can a doctor be faithful to that oath if they were to actively withdraw life-saving critical medical care from a patient who needs that care and who has not consented to its being withdrawn?

We call on the Government to immediately end its protracted secrecy on this issue, and on the overall topic of critical care triage. These topics, and the Government’s plans, must be fully discussed and debated publicly. The Government should come clean on whether it is considering the possibility of trying to override or suspend the Health Care Consent Act. Most important, the Government should now categorically state that it will not try to suspend or override that important law, in whole or in part.

We should not have such a drastic step as this sprung on us and all Ontarians at the last minute, by a somber announcement such as that imagined above, and with an emergency used as an excuse for months of unwarranted Government secrecy.

            MORE DETAILS

 1. How This Might Work in Practice

What could it mean to seriously ill patients in hospital and their families if the Ford Government took the drastic action we address in this Update? Imagine a seriously ill patient who needs life-saving critical care in a hospital. Imagine that they are admitted to an Intensive Care Unit and begin receiving critical care. However, the COVID-19 pandemic keeps straining our hospitals, so much that the Ford Government decides that there are more critical care patients than there is capacity in hospitals to handle. Government decides that critical care bed, ventilators and services must be rationed or triaged. Under the January 13, 2021 triage protocol which the Government sent to Ontario hospitals to direct how such triage would happen, doctors would choose who, in the lineup for critical care, would be admitted to critical care. Some would be told there is no room. That is quite likely a death sentence for those who are not admitted. That would be bad enough.

However, it would be even worse if doctors could also evict a patient from their spot in critical care, partway through their treatment, to make room so another patient could be admitted whom the doctors feel has a better chance of surviving. Although it is in some ways unclear on this, the January 13, 2021 triage protocol may not direct hospitals generally to evict critical care patients in such situations from critical care. We wrote Health Minister Christine Elliott on January 18, 2021 to ask for this to be clarified. As with all our letters to her on the triage topic, she has not answered.

According to the January 21, 2021 edition of the National Post, the Government’s advisory Bioethics Table has recommended that the Ford Government act even more drastically than the January 13, 2021 triage protocol. They have reportedly recommended that the Government pass some sort of order or regulation to give doctors the power to withdraw critical care from a patient who is in the middle of receiving it and who needs it, as part of critical care triage. It is to that possibility that we are turning attention here.

As stated above, the Government has not said that it has implemented the Bioethics Table’s drastic recommendation on this. That gives us no comfort, because the Government has said very little about the entire topic of critical care triage. What it has said at all about critical care triage has, at times, been of questionable candor and accuracy.

How might this situation play out in a hospital? If the Ford Government passed some sort of regulation or executive order, as the Bioethics Table recommended, to suspend the Health Care Consent Act, and if critical care triage is directed to take place, doctors in a hospital might look at a critical care patient (We’ll call him Tom) who is already receiving critical care. The doctors might decide that Tom has less than a year to live and that his chances don’t look good. The doctors might then look at those patients in the lineup to get into critical care, and conclude that one or of them (We’ll call her Betty) has a better chance of surviving a year or more.

The doctors would be able to withdraw the critical care, already in progress for Tom, and transfer that critical care to Betty. Betty would get Tom’s critical care bed, ventilator and services instead of Tom. The proverbial plug could be pulled on Tom, without his consent or the consent of his substitute decision-maker.

We do not here explore how exactly the doctors would compare or evaluate Tom’s and Betty’s likely chances of survival. We do note that in The January 22, 2021 edition of CBC Radio’s “White Coat Black Art” program, Dr. Michael Warner, the Medical Director of Critical Care at Toronto’s Michael Garron Hospital. Describing how the January 13, 2021 triage protocol would work, he stated in part:

“What’s different now is we have to essentially guesstimate what would happen a year from now.”

He explained that this is not how treatment decisions are now made, and that doing this would be “very difficult to do…” because doctors will be very busy caring for patients, and not all patients will have this protocol. This head of a Toronto hospital’s ICU said candidly that he is not sure how they would action this in real life “because it’s a policy on paper…”

Dr. Warner was asked how confident he is that emergency doctors can use these new rules accurate in a chaotic and stressful environment like an emergency room. Dr. Warner responded in part:

“… so it’s hard to know how we would be able to effectively use a tool that’s written on a piece of paper, where two doctors have to verify someone’s mortality risk and then decide on what to do, if there are patients everywhere, you know, potentially dying. You know, I think we need something written down on paper, so that all these stakeholders can review it and provide their input, but at the end of the day, if we ever have to use it, we may have to improvise…”

To be extremely fair, we emphasize that Dr. Warner was not asked to discuss the situation if the Government took the drastic step of trying to override the Health Care Consent Act. Nevertheless, his concerns, quoted above, would seem to us to apply equally to such a drastic situation.

If doctors could unilaterally pull the plug on an existing critical care patient like Tom, over their objection, no patient in an Intensive Care Unit could feel safe that they won’t be evicted at some point, to make room for someone else, before it would be medically appropriate to stop giving them critical care they need. Under the January 13, 2021 triage protocol, any patient needing critical care who would be denied critical care would still be offered medical care, but it would be something less than the life-saving care one gets in critical care.

 2. Recklessly Tap-Dancing in a Constitutional Minefield

What is the constitutional minefield that this would create? It has many layers.

If Tom, the evicted critical care patient, dies as a result, it would not be surprising for his family to consider suing the doctor, the hospital and the Ford Government for this death. We cannot and absolutely don’t here offer legal advice to anyone. However, we can foresee some of the arguments that might be made on Tom’s behalf.

To defend themselves, the doctor and hospital could be expected to point to the Government’s January 13, 2021 triage protocol and say they were following this direction. As for withdrawing critical care from Tom, a patient who is in the middle of receiving critical care, the doctor, hospital and Government could also be expected to point to any regulation or executive order that the Government might pass in an attempt to suspend the Health Care Consent Act, and say that they were following it when they took away critical care from Tom, over his objection.

We now arrive at the constitutional minefield. Here are just some of the points that Tom’s family might present. A court would have to rule on these arguments and the responses or defences that the doctor, hospital and/or Government might present. Each of these arguments, if successful, might be sufficient to knock out the defence.

  1. Tom’s family might well argue that the Government cannot give directions on who lives and who dies during critical care triage by simply sending hospitals a memo, which is all the January 13, 2021 triage protocol is. The Government would have to show that those sending the memo had the legal mandate to make such decisions and give such life-and-death directions by simply sending a memo like the January 13, 2021 triage protocol.
  1. If the Ford Government did not approve the January 13, 2021 triage protocol, Tom’s family might argue that the Government has an even more uphill argument if it wants to argue that the January 13, 2021 triage protocol was somehow authorized by law. This is because the Ford Government had told media that it did not approve the January 13, 2021 triage protocol. This is so even though it states in the document that it was approved by the Ontario Critical Care COVID Command Centre. It was the Ford Government that set up the Ontario Critical Care COVID Command Centre.
  1. If Cabinet passed a regulation or order suspending the Health Care Consent Act, Tom’s family can be expected to argue that the Ford Government’s Cabinet did not have the power to make such a regulation or executive order. To make a regulation or like order, it would be practically necessary for the Government, the doctors and/or the hospital to show that the Legislature gave Cabinet the power to pass such a regulation or order.

Tom’s family might argue that a piece of legislation, supposedly conferring this power on Cabinet, is itself unconstitutional. If so, then Cabinet cannot use it to override the Health Care Consent Act.

If that argument fails, Tom’s family could argue that the piece of legislation supposedly conferring that power on Cabinet, should be interpreted narrowly, and that so interpreted, it did not authorize the Cabinet to make the regulation or order on which the Government, doctors and hospital rely.

This can be a complicated legal issue. We do not here review the legislative options that the Government might try to rely on to authorize such a regulation or executive order. However, Tom’s family could be expected to argue that the Legislature cannot simply give Cabinet carte blanche to pass any regulation it wants on any topic it wants.

Among other things, Tom’s family could urge the Court to interprete narrowly any legislation that gives Cabinet power to make regulations and orders. They could well argue that before a court agrees that legislation gives Cabinet the power to pass a drastic relation or issue a drastic order that suspends the Health Care Consent Act or that otherwise infringes Tom’s constitutional rights guaranteed by the Charter of Rights, that legislation must make it clear that the Legislature meant to give Cabinet such a drastic power. Tom’s family can also be expected to argue that any legislation, supposedly giving Cabinet such power, should be interpreted strictly and restrictively. The Legislature should not be able to pass the buck to Cabinet on so serious a topic. The Legislature must debate issues in public, with the Opposition present and participating. In sharp contrast, the Cabinet meets in secret, with no Opposition present.

Put another way, Tom’s family could argue that when a court interpretes legislation that gives power to Cabinet to make regulations, it should be presumed that this did not include a power to infringe the constitutional rights of medical patients, guaranteed by the Canadian Charter of Rights and Freedoms, or other basic rights to consent to medical decisions about their own health care, unless the Legislature said so in the clearest of language. For example, the family might well be expected to argue that the Legislature did not intend to delegate to Cabinet the power to grant exemptions from the Health Care Consent Act, if this will involve discrimination against patients with disabilities. The AODA Alliance and the ARCH Disability Law Centre have shown how the January 13, 2021 triage protocol presents the danger of disability discrimination. All that the Government’s defenders who have spoken in public have said in its defence is to say that the January 13, 2021 triage protocol states that doctors should not discriminate based on grounds like disability. However, that protocol goes on to tell doctors to use the Clinical Frailty Scale for some patients, when deciding if they should be refused or evicted from critical care. We have shown that this Scale is replete with disability discrimination. The protocol’s earlier statement to doctors not to discriminate based on disability does not cure or reduce the Clinical frailty Scale’s disability discrimination.

As well, the January 13, 2021 triage protocol does not provide a critical care patient with any due process, such as a right of appeal, if doctors decide to refuse them critical care, or to evict a critical care patient from the Intensive Care Unit. Tom’s family could well try to argue that the Legislature should not be taken as giving Cabinet the power to suspend the Health Care Consent Act without any due process for patients, unless the Legislature said so very explicitly.

Similarly, Tom’s family can be expected to argue that a court should be very reluctant to interprete legislation as giving Cabinet the power to make a regulation or other order that endangers a medical patient’s right to life, which is spelled out in section 7 of the Charter of Rights. Tom’s family may contend that this right is at stake when talking about refusing a patient critical care they need, or unplugging them from critical care they need and are already receiving.

  1. If any of those arguments by Tom’s family succeed, then the doctors, hospital and Government could be in hot water. There is even more to this minefield, even if it were assumed that those arguments by Tom’s patient’s family might not succeed.

Tom’s family could try to argue that Cabinet’s regulation or order or the doctors or hospitals actions under them and under the January 13, 2021 triage protocol nevertheless violate tom’s constitutional rights under the Charter of Rights. They would want to argue that in Eldrige v. B.C., Canada’s leading ruling on the Charter’s guarantee of equality to people with disabilities, the Supreme Court of Canada said that a patient can invoke the Charter to challenge the delivery of health care services in a hospital (there, the failure to provide a Sign Language interpreter to a deaf emergency room patient).

For example, Tom’s family could try to argue that the treatment of Tom by the doctors, hospital and/or the Government included disability discrimination contrary to Charter s. 15 (equality without discrimination on grounds like disability) and/or it denied the patient fair procedure in the triage process as guaranteed by Charter s. 7. (The right to not be deprived of one’s life without fulfilling the principles of fundamental justice). If a court was persuaded that any of these Charter rights were violated, the Government might try to argue that Charter s. 1 saves the day for them. Section 1 of the Charter provides:

“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The Government would have to argue that a suspension of the Health Care Consent Act was justified due to the COVID-19 emergency. However, there are many arguments that the courts will have to consider. It will not be an easy task. It is the Government that must prove that s. 1 justifies government action.

Tom’s family might argue that by February 2021, this emergency was neither sudden nor unexpected. The COVID-19 pandemic had raged for almost a year. The Government knew in February 2020 that it should prepare for the eventuality of critical care triage. Yet as the AODA Alliance website amply shows, the Government has refused to embark on a proper public debate and discussion of this issue. It has dealt with it via secret triage protocols, closed door meetings, and a protracted failure to directly consult the public (including people with disabilities).

We and others repeatedly alerted the Government to the pitfalls in its triage planning, sought a chance to deal directly with the Government, and offered constructive solutions. This is an eventuality for which the Government could have been prepared with less drastic measures, had it properly planned for it.

  1. Even if it were assumed that Tom’s family failed on each and every one of the preceding arguments, still more dangers await the Government in this constitutional minefield. Tom’s family might be expected to argue that Ontario cannot authorize a doctor or hospital to withdraw critical care from a patient who needs it and who is receiving it, over the objection of the patient or their substitute decision-maker, without running afoul of the Criminal Code’s provisions on culpable homicide. His family may choose to argue that under Canada’s Constitution, it is Canada’s Parliament, and not a provincial Legislature or Government, that decides what constitutes a criminal homicide. If unplugging a patient from a ventilator or otherwise evicting them from critical care that they need without their consent is criminal conduct in some situations, Tom’s family may argue that Ontario’s Legislature, Cabinet or Government cannot legalize it.

 3. There are Ready Solutions Open to the Ford Government

What is the solution to this minefield in which Premier Doug Ford could soon find himself dangerously tap-dancing? It includes steps like these:

  1. Stop dealing with the critical care triage issue in secret, behind closed doors. Immediately embark on a public discussion of it. Don’t continue to hide behind the Government-appointed external, advisory Bioethics Table. Stop using that group as human shields. Talk directly to those of us in society, like disability advocates, who have ideas to share. Answer our seven unanswered letters on the critical care triage topic.
  1. Take off the table the option of suspending the Health Care Consent Act and letting doctors withdraw life-saving critical care from a patient who needs it and is receiving it.
  1. Ensure that whatever the Government does in this area will be properly authorized by legislation. If legislation is needed, this should be immediately introduced into the Legislature for debate. Public hearings should be held. It should not be rammed through without a proper chance for public input.
  1. Ensure that whatever the Government does regarding triage is fully constitutional. Don’t put families in the position of having to fight the Government after the fact, and after the devastating trauma of having to lose a family member.
  1. Implement an immediate, public, aggressive strategy to reallocate enough health care workers to ensure that Ontario has enough capacity to deliver effective critical care to all who need it, even in the face of further surges in demand due to COVID-19. That could eliminate any need for triage of critical care.

The AODA Alliance is standing by and ready to help.

4. Learn More About Ontario’s Controversial Critical care Triage Issue

For more background on this issue, check out:

  1. The new January 13, 2021 triage protocol which the AODA Alliance received, and is now making public, and has asked the Ford Government to verify. We have only acquired this in PDF format, which lacks proper accessibility. We gather some others in the community now have this document as well.
  1. The AODA Alliance’s January 18, 2021 news release on the January 13, 2021 triage protocol.
  1. The panel on critical care triage, including AODA Alliance Chair David Lepofsky, on the January 13, 2021 edition of TVO’s The Agenda with Steve Paikin.
  1. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed last month.
  1. The AODA Alliance website’s health care web page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.



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For over 2.6 Million Ontarians with Disabilities, Sunday January 31, 2021 Will Be The Ford Government’s Sad Two Year Anniversary of Inaction On Disability Accessibility


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

For over 2.6 Million Ontarians with Disabilities, Sunday January 31, 2021 Will Be The Ford Government’s Sad Two Year Anniversary of Inaction On Disability Accessibility

January 29, 2021

            SUMMARY

Ontario is on the verge of a deeply troubling anniversary of Ontario Government inaction. This Sunday, January 31, 2021 marks the two year anniversary since the Ford Government received the blistering  final report of the Independent Review of the Implementation of the Accessibility for Ontarians with Disabilities Act. This report was written by former Ontario Lieutenant Governor David Onley.

In the two years since it received this report, the Ford Government has announced no strong, comprehensive plan to implement its recommendations. Most of its recommendations have not been implemented at all. This is so even though Ontario’s Accessibility Minister, Raymond Cho said in the Legislature on April 10, 2019 that David Onley did a “marvelous job” and that Ontario is only 30 percent along the way towards the goal of becoming accessible to people with disabilities.

It is a wrenching irony that this anniversary of inaction comes right after we celebrated the 40th anniversary of Canada’s Parliament deciding to include equality for people with disabilities in the Canadian Charter of Rights and Freedoms. That momentous breakthrough took place on January 28, 1981, 40 years ago yesterday. The Accessibility for Ontarians with Disabilities Act was passed in no small part to implement that constitutional right to equality for people with disabilities.

Over the past two years, the AODA Alliance has spearheaded grassroots efforts to get the Ford Government to come forward with a strong and comprehensive plan to implement the Onley Report. We have offered many constructive recommendations. We have also offered the Government our help. On Twitter and in our AODA Alliance Updates, we have maintained an ongoing count of the number of days that had passed since the Government received the Onley Report, keeping the spotlight on this issue. As of today, it has been 729 days.

The Government has taken a few new actions on accessibility since it took office in June 2018, the most important of which are summarized below. But these have been slow, halting and inadequate.

            MORE DETAILS

 1. What the Onley Report Found About the Plight of Accessibility for Ontarians with Disabilities

In February 2018, the Ontario Government appointed David Onley to conduct a mandatory Independent Review of the AODA’s implementation and enforcement. He was mandated to recommend reforms needed to ensure that Ontario becomes accessible by 2025, the goal which the AODA requires. Based on public feedback he received, the Onley report found that the pace of change since 2005 for people with disabilities has been “glacial.” With under six years then left before 2025 (now less than four years), the Onley report found that “…the promised accessible Ontario is nowhere in sight.” Onley concluded that progress on accessibility for people with disabilities under this law has been “highly selective and barely detectable.”

David Onley also found “…this province is mostly inaccessible.” The Onley Report accurately concluded:

“For most disabled persons, Ontario is not a place of opportunity but one of countless, dispiriting, soul-crushing barriers.”

The Onley Report said damning things about years of the Ontario Government’s implementation and enforcement of the AODA. He in effect found that there has been a protracted, troubling lack of Government leadership on this issue, even though two prior Government-appointed AODA Independent Reviews called for renewed, strengthened leadership:

“The Premier of Ontario could establish accessibility as a government-wide priority with the stroke of a pen. Our previous two Premiers did not listen to repeated pleas to do this.”

The Onley Report made concrete, practical recommendations to substantially strengthen the Government’s weak, flagging AODA implementation and enforcement. Set out below is the Onley Report’s summary of its recommendations. Many if not most of them echo the findings and recommendations that the AODA Alliance submitted in its detailed January 15, 2019 brief to the Onley Review. Among other things, David Onley called for the Government to substantially strengthen AODA enforcement, create new accessibility standards including for barriers in the built environment, strengthen the existing AODA accessibility standards, and reform the Government’s use of public money to ensure it is never used to create disability barriers.

 2. What New Has the Ford Government Done on Accessibility Since the Onley Report?

It was good, but long overdue, that when releasing the Onley report back in March 2019, the Ford Government at last lifted its inexcusable 258 day-long freeze on the important work of three Government-appointed advisory committees. These committees were mandated under the AODA to recommend what regulations should be enacted to tear down disability barriers in Ontario’s education system impeding students with disabilities, and in Ontario’s health care system obstructing patients with disabilities. The AODA Alliance led the fight for the previous nine months to get the Ford Government to lift that freeze. Because of those delays, the Government delayed progress on accessibility for people with disabilities in health care and education. We are feeling the harmful effects of those delays during the COVID-19 pandemic.

The Ford Government’s main focus of its efforts on accessibility for people with disabilities has been on educating the public on the benefits of achieving accessibility for people with disabilities. That is work that the previous Government had been doing for over a decade. That alone will not bring about significant progress.

Since releasing the Onley Report, the Ford Government has held a couple of staged ministerial events, on January 28, 2019 and on October 29, 2019 (for which an inaccessible email invitation was sent), supposedly to announce a framework to implement the Onley Report. However they announced little, if anything, new. To the contrary, they focused on re-announcing things the Government had been doing for years, including at least one measure dating back to the Bob Rae NDP Government that was in power over a quarter century ago.

The Government has announced no plans to implement any of the recommendations for reform of accessibility standards from the Transportation Standards Development Committee (which submitted its final report to the Ontario Government in the spring of 2018, almost three years ago) or the final report of the Information and Communication Standards Development Committee (which submitted its final report some ten or eleven months ago).

The Government has had in hand for at least a month, if not more, the initial report of the Health Care Standards Development Committee. It must be posted for public comment. The Government has not posted it, or announced when it will do so. In the midst of this pandemic, swift action in the area of health care accessibility is desperately needed for people with disabilities and all Ontarians.

In the meantime, the one major new strategy on disability accessibility that the Ford Government has announced in its over two and a half years in office has been an action that David Onley never recommended and has, to our knowledge, never publicly endorsed. The Government diverted 1.3 million public dollars to the seriously problematic Rick Hansen Foundation’s private building accessibility “certification” program. We have made public serious concerns about that plan. The Government never acted on those concerns. Almost two years later, there is no proof that that misuse of public money led to the removal of any barriers in an Ontario building.

Despite announcing that the Government will take an “all of Government” approach to accessibility in response to the Onley Report, we have seen the opposite take place. TVO has not fixed the serious accessibility problems with its online learning resources, much needed during distance learning in this pandemic. The Government is building a new courthouse in downtown Toronto with serious accessibility problems about which disability advocates forewarned. During the pandemic, the Government has had circulated two successive critical care triage protocols which direct hospitals to use an approach to triage that would discriminate against some patients with disabilities and has refused to directly speak to us about these concerns. Over our objection, the Government has unleashed electric scooters on Ontarians, exposing people with disabilities to dangers to their safety and accessibility. This is all amply documented on the AODA Alliance’s website.

Over 2.6 million Ontarians with disabilities deserve better.

 3. The Onley Report’s Summary of Its Recommendations

  1. Renew government leadership in implementing the AODA.

Take an all-of-government approach by making accessibility the responsibility of every ministry.

Ensure that public money is never used to create or maintain accessibility barriers.

Lead by example.

Coordinate Ontario’s accessibility efforts with those of the federal government and other provinces.

  1. Reduce the uncertainty surrounding basic concepts in the AODA.

Define “accessibility”.

Clarify the AODA’s relationship with the Human Rights Code.

Update the definition of “disability”.

  1. Foster cultural change to instill accessibility into the everyday thinking of Ontarians.

Conduct a sustained multi-faceted public education campaign on accessibility with a focus on its economic and social benefits in an aging society.

Build accessibility into the curriculum at every level of the educational system, from elementary school through college and university.

Include accessibility in professional training for architects and other design fields.

  1. Direct the standards development committees for K-12 and Post-Secondary Education and for Health Care to resume work as soon as possible.
  1. Revamp the Information and Communications standards to keep up with rapidly changing technology.
  1. Assess the need for further standards and review the general provisions of the Integrated Accessibility Standards Regulation.
  1. Ensure that accessibility standards respond to the needs of people with environmental sensitivities.
  1. Develop new comprehensive Built Environment accessibility standards through a process to:

Review and revise the 2013 Building Code amendments for new construction and major renovations

Review and revise the Design of Public Spaces standards

Create new standards for retrofitting buildings.

  1. Provide tax incentives for accessibility retrofits to buildings.
  1. Introduce financial incentives to improve accessibility in residential housing.

Offer substantial grants for home renovations to improve accessibility and make similar funds available to improve rental units.

Offer tax breaks to boost accessibility in new residential housing.

  1. Reform the way public sector infrastructure projects are managed by Infrastructure Ontario to promote accessibility and prevent new barriers.
  1. Enforce the AODA.

Establish a complaint mechanism for reporting AODA violations.

Raise the profile of AODA enforcement.

  1. Deliver more responsive, authoritative and comprehensive support for AODA implementation.

Issue clear, in-depth guidelines interpreting accessibility standards.

Establish a provincewide centre or network of regional centres offering information, guidance, training and specialized advice on accessibility.

Create a comprehensive website that organizes and provides links to trusted resources on accessibility.

  1. Confirm that expanded employment opportunities for people with disabilities remains a top government priority and take action to support this goal.
  1. Fix a series of everyday problems that offend the dignity of people with disabilities or obstruct their participation in society.



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