Making Ontario Workplaces Accessible

By: Norm Keith, B.A., J.D., LL.M., CRSP*

Introduction:

Ontario is continuing to legislate mandatory accessibility standards for Ontario workplaces. The Accessibilities for Ontarians with Disabilities Act 2005 (“AODA” or “the Act”) was originally introduced by the Ontario government in 2005. The AODA replaced the Ontarians with Disabilities Act (2001), that was criticised for its lack of enforcement mechanisms, emphasis on voluntary compliance, and its application only to the public sector. Public sector organizations have been required to comply with accessibility standards respecting customer service since January 1, 2010. As of January 1, 2012, all private sector organizations join the public sector and must comply with the new standards.

According to Statistics Canada, the total number of Canadians with disabilities aged 15 years and older is 4,215,530¹. The study confirms that the prevalence of any form of disability rises increasingly with age. Since discrimination on the basis of both age and disability are prohibitive grounds under Ontario's Human Rights Code in the context of employment, services, and accommodation, the new legislation compliments the prohibition against discrimination. It is both the prevalence of Canadian's with disabilities, that the Ontario government has focused on, in increasing its commitment to providing accessibility for Ontarians with disabilities.

The purpose of the AODA is to develop, implement and enforce accessibility standards to achieve accessibility for Ontarians with disabilities with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises in Ontario. Interestingly, the purpose clause of the AODA makes the following audacious statement, "recognizing the history of discrimination against persons with disabilities in Ontario", indicating the context and spirit with which the Act and its regulations will be enforced. One of these regulations, the first to be implemented, is the Accessibility Standards for Customer Service, Ontario Regulation 429/07. That Regulation must be complied with by private sector organizations on or before January 1, 2012.

Ontario has chosen a mandatory approach rather than a market based or volunteer approach to ensure that goods and services are provided in a manner that respects the dignity of all persons. While the goal of the AODA is laud-worthy, the new legislation may be unnecessarily draconian with harsh penalties for non-compliance.

The AODA

By way of background, the real substance of the AODA that employers and other organizations must be aware of is contained in the accessibility standards passed by Regulations to the Act. The first accessibility standard is the Accessibility Standards for Customer Service ("ASCS"). Four additional accessibility standards are expected in the areas of employment, information and communication, transportation and built environments. The AODA requires full compliance with all of its accessibility standards by the year 2025.

Before reviewing the implications of the ASCS, the nature and scope of the AODA must be understood. The AODA applies to every person and organization in the public and private sectors of the province of Ontario, including the Legislative Assembly of Ontario. The AODA focuses on removing barriers for persons with disabilities. The legal definition of the term "barrier" is critical. The AODA defines a "barrier" to mean "anything that prevents a person with a disability from fully participating in all aspects of society because of his or her disability including a physical barrier, an architectural barrier an information or communications barrier, an attitudinal barrier, a technological barrier, a policy or practice". With such a broad definition, the scope and application of this legislation for Ontario businesses, employers and organizations is significant.

The AODA sets out extensive legal requirements for the development of accessibility standards. An accessibility standard will apply to organizations that provide goods, services or facilities to Ontarians; employs persons in the province of Ontario, offers accommodation to any member of the public, owns or occupies a building, structure or premise; or is engaged in a business activity or undertaking that is specifically described in a regulation. The development of the standards, in terms of the content of the standards, the standards development committee, the public availability of minutes of meetings of the committee and consultation and public comment, before final promulgation of the Regulations that contain the standards, are all detailed in Part III of the AODA.

Another important aspect of the contents of standards is that accessibility standards must set out measures, policies, practices or other requirements for the identification and removal of barriers for persons with disabilities. This is to ensure that all persons in Ontario are able to access goods, services, facilities, accommodation, employment, buildings, structures, premises or such other things as may be prescribed by regulation and to prevent the erection of further barriers.. The AODA also requires organizations to implement measures, policies, practices or other requirements within specified time periods, as in the case of the ASCS, with a January 1, 2012 compliance date.

Part IV of the AODA provides for inspections by inspectors from the Ministry of Citizenship and Immigration. Inspectors may carry out an inspection under the AODA for the purpose of determining compliance with the Act, regulations and accessibility standards. Inspectors may enter, without a search warrant, any lands, buildings, structures or premises where the inspector has "reason to believe there may be documents or things relevant to the inspection". The absence of a requirement for a search warrant is rather disturbing and of potential concern to the privacy interests of organizations and employers in Ontario. These inspectors have broader power, in some instances, than police officers.

A private home or dwelling may be entered by an inspector only if they have first obtained a search warrant, unless the occupant consents to the inspection. Since there is no obvious benefit or reward, financial or otherwise, for an individual to comply with the AODA, consent to allow an inspector into a persons' private residence or dwelling, may be ill-advised.

Once an inspector enters an employer's place of business, they are entitled to request documents, records, or other things that are relevant to the inspection. They may also seize and remove any document, record or thing upon providing a receipt, for the purpose of making copies or extracts off site. They may also question any person present at the place of employment on any matter "relevant to the inspection". Further, in light of modern technologies, the inspectors also have the power to use any data storage, processing, or retrieval device or system in carrying out the request for documents, records, or things.

An inspector from the Ministry of Citizenship and Immigration may be accompanied by a person who has expert, special and professional knowledge of the matters that are the subject of the inspection. This may include representatives from disability rights organizations.

Perhaps of little comfort to employers and others is, the AODA prohibition that inspectors cannot use force to enter and inspect the premises. However, an employer who refuses to permit the entry of an inspector is subject to Administrative Monetary Penalties ("AMPs") and quasi-criminal prosecution in the courts.

There is also a provision in the AODA for the issuance of search warrants, to both places of employment and private dwellings, to be issued only in furtherance of the objectives of the Act. If there is any anticipated difficulty with respect to the execution of the search warrant, the inspector may "call upon police officers" to help them in executing the search warrant. It is interesting button pushing that the AODA anticipates the involvement of armed police officers to enforce the Act.

Part V of the Act sets out the authority of a Director, appointed by the Deputy Minister of the Ministry of Citizenship and Immigration, to issue orders to a business or an employer not in compliance with the AODA and where either the intent or the effect of any business policy, practice or procedure is determined to have failed to comply with an accessibility standard or otherwise potentially defeat the purposes of the AODA. The Director's order may require the business to file an accessibility report to confirm compliance with the requirements of the AODA within a specific time period; provide the Director with such reports or information as may be required for compliance with the AODA and such orders to pay AMPs in accordance with the Regulations.

AMPs may be issued by the Director against employers and others for one or more of the following purposes:

1. To compel compliance with the AODA or an order made pursuant to the Act;
2. To prevent an employer from deriving any economic benefit as a result of the contravention of the AODA, directly or indirectly; and,
3. To recover the costs of enforcing the AODA and its regulations against any employer in Ontario;

AMPs may be appealed to the new Tribunal or existing Tribunal, yet to be named, that will deal with appeals under the AODA.

Part VI of the AODA deals with appeals to the Tribunal, and many related administrative matters. The fact that the AODA allows the Lieutenant Governor and Council to designate, by regulation, one or more tribunals for the purposes of enforcing the AODA and regulations is somewhat confusing. It is not clear whether the Ontario Labour Relations Board ("OLRB") or some other existing administrative tribunal will have the authority to hear and decide complaints and appeals. It is not clear if there will be more than one tribunal with jurisdiction over the legislation. The authority of the Tribunal, according to the AODA, permits disability advocate and interest groups to participate in appeal hearings.

Part VII of the AODA deals with Municipal Accessibility Advisory Committees. The council of every municipality in Ontario with a population of not loess than 10,000 individuals must establish an Accessibility Advisory Committee. Smaller municipalities are encouraged in the legislation, but not required by law, to develop a similar committee. No explanation is offered in the AODA for this distinction. The duties of these committees include advising the council about the requirements and implementation of accessibility standards, preparation of accessibility reports, and other related matters. Municipal councils are required by law to seek advice from the committee on the accessibility for persons with disabilities to buildings, structures, or premises that council purchases, constructs, or significantly renovates. There is no legal definition for the phrase "significantly renovates". There is also no explanation why a joint health and safety committee under the Occupational Health and Safety Act ("OHSA") would not be a suitable, already existing committee to deal with these issues rather than to establish a new legislative committee.

Part VIII of the AODA deals with various administrative issues under the Act. The Deputy Minister will appoint one or more Directors for the purpose of enforcing the AODA. The Directors have immunity from personal liability in conducting their duties in good faith.

The Minister will also establish a Council to be known as the Accessibility Standards Advisory Council that will function in both English and French. The majority of the members of the Accessibility Standards Advisory Council must, by law, be persons with disabilities. The legislation does not specify the type of disability that members of the Council must have to qualify to be a member of the Council.

The Council shall advise the Minister of Citizenship and Immigration on the process for the development of proposed accessibility standards and programs made by standard development committees for achieving the purposes of the AODA. In addition to the Council, the existing Directorate, known as the Accessibility Directorate of Ontario, will be continued. It is not clear whether the mandate of the Accessibility Directorate of Ontario will compliment, overlap, or conflict with the new Council. There is no legislative provision addressing budget or cost control methods in the AODA to limit, control or manage spending by the Council.

If the Minister of Citizenship and Immigration determines that it is in the "public interest", a term that is not defined in the AODA, to enter into agreements with organizations to comply with accessibility standards, then they may enter into such incentive agreements. The public interest may or may not address the concern of taxpayers regarding the costs to establish and enforce the AODA.

Part IX of the AODA sets out the content agreements, exemptions, and other administrative aspects of the potential for incentive agreements between business and government. Under Part X of the AODA, the extensive powers of the Minister and the Directors are established.

Part X establishes offences for any person, including employers, who breach provisions of the AODA or provide false or misleading information in an accessibility report. Offences are established in this part of the AODA by prohibiting persons from intimidating, coercing, penalizing or discriminating against another person because that person has sought or is seeking the enforcement of the Act, made orders under the Act, cooperated with inspectors, or has provided information to an inspector in the course of a proceeding or investigation under the AODA.

Penalties under the AODA for all persons who contravene the Act are quite high. An individual may be fined up to $50,000.00, per day, for each day or part thereof on which an offence occurs. Corporations may be fined up to $100,000.00, per day, for each day or part thereof on which the offence occurs. The fines are not directed to benefit an individual but rather go into general government revenue from provincial offences fines.

Directors and officers of corporations are given a positive legal duty to take all reasonable care to prevent the corporation from committing an offence under the AODA. If an officer or director of a corporation fails to carry out that duty, they are guilty of an offence and, upon conviction, in Provincial Offences Court, may be fined up to $50,000.00 per day. Directors and officers are clearly at significant legal risk if they do not ensure their organizations are in compliance with the AODA.

This part of the AODA also provides for a competing legislative conflict provision that is rather unique in Ontario law. It states that if the Act or an accessibility standard passed by a regulation under the Act, conflicts with a provision of any other Act or regulation, then the provision that provides the highest level of accessibility for persons with disabilities with respect to goods, services, facilities, accommodation, buildings, structures or premises shall prevail. This begs the question of how one reconciles that section, section 38 of the AODA, with the provision in the OHSA, section 2(2),  that puts worker's health and safety as the highest legislative priority of that statute. Therefore, if providing accessibility for any person places workers' health and safety at risk, it is not clear which is the legislative priority.

In summary, the AODA has a clear mandate to ensure accessibility for all Ontarians. The government has taken an aggressive stand in legislating accessibility standards. Its enforcement, according to the provisions of the AODA, are nothing short of draconian. However, one hopes that the Minister in charge of the legislation and the bureaucracy established to enforce the provisions of the AODA, will be reasonable. Compliance with the purpose of the AODA rather than closing down businesses should be the focus of enforcement staff.

In the next part of this article, we will review the contents and employer obligations under the Accessibility Standards for Customer Service, which comes into force for all private sector organizations on January 1, 2012 in Ontario.

Accessibility Standards for Customer Service

The first accessibility standard passed under the AODA is the Accessibility Standard for Customer Service ("ASCS"). The Regulation establishes the legal requirements for accessibility standards for customer service.

Public sector organizations have been required to comply with the ASCS since January 1, 2010. Private sector organizations will be required to comply by January 1, 2012. In addition, the ASCS applies to all employers who employ at least one employee in the province of Ontario. An overview of compliance obligations for Ontario employers involves the following:

1. The development of policies, practices and procedures governing the provision of goods or services to persons with disabilities, including a policy about the use of assistive devices;
2. Using reasonable efforts to ensure that these policies, practices and procedures are consistent with the principles of respect, dignity and independence and provision of goods and services in an integrated manner;
3. Communication with customers with disabilities in a manner that takes into account their disability (such as using Braille);
4. Training customer service staff and anyone responsible for developing customer service policies, practices and procedures in the provision of accessible customer service;
5. Permitting customers who have support persons or service animals to use them while accessing the goods or services and providing advance notice about any policy on admission fees;
6. Providing notice when accessibility to services or facilities is temporarily disrupted (such as indications that an elevator is temporarily out of service);
7. The development of a process for customers to provide feedback and for the organization to take action on complaints;

The ASCS provides further guidance with regard to the legal duty that all Ontario businesses establish policies, practices, and procedures governing the provision of goods and services to persons with disabilities in Ontario:

1. The goods or services must be provided in a manner that respects the dignity and independence of persons with disabilities. Although the intent behind this point is sound, this principle is somewhat subjective and what amounts to dignity and independence for one individual clearly may not be the same as dignity and independence for another person with a disability.
2. The provision of goods and services to persons with disabilities must be integrated by the employer into its provision of goods and services, to ensure that all persons are able to obtain, use or benefit from the employers goods or services. There is a subordinate clause in this requirement that reads as follows: "unless an alternate measure is necessary". The ASCS does not provide for a definition of this phrase and it somewhat confuses the principle of ensuring that persons with disabilities obtain or use or benefit from the employers goods or services by law.
3. Persons with disabilities must be given an opportunity equal to that given to persons without disabilities to obtain use and benefit from the goods and services offered by the employer. This equality of opportunity requirement, from a customer service perspective, is laud worthy, however, the ASCS does not give a clear indication of how this principle will be applied by businesses, both large and small, across Ontario.
4. Employers' policies, practices and procedures must address the use of assistive devices by persons with disabilities to obtain, use, or benefit from the providers' goods or services. The phrase "assistive devices" is not defined in either the AODA or the ASCS. This could be one of the most challenging areas for compliance with the ASCS for businesses.
5. Employers must have measures in place in order to communicate with persons in a manner that "takes into account the person's disability". This means there is a measure of customer sensitivity and responsiveness on the part of employers. Providing information and communication in an accessible format or communication support for persons with disabilities could include larger font, Braille or audio format.
6. Every employer that has at least 20 employees in Ontario, shall prepare one or more documents describing its policies, practices, and procedures and, upon request, give a copy of such documents to any person. This permits public accountability, on the one hand, but also permits disability advocacy groups to promote accountability by demanding employers with 20 workers or more provide them with their policies, practices and procedures with respect to compliance with the AODA.

The ASCS also requires employers to establish measures and procedures to ensure that persons are provided with the necessary assistance to ensure their ability to obtain goods and services from employers across Ontario.

For example, if a person is accompanied by a guide dog or other service animal, the person must be permitted on the premises with the animal. In the rare exception where a service animal is excluded by law from the premises, the provider of goods or services shall ensure that other means or measures are available to enable the person to obtain, use or benefit from the employer's goods or services. Further, if there is a support person assisting the person, the employer must ensure that they are not prevented from accessing their premises..

There is also a requirement under the ASCS that if facilities or services are temporarily disrupted, that notice should be made available to the public in a manner that ensures all persons are informed of the temporary disruption. Every business that employs 20 or more workers in Ontario shall prepare a written procedure that sets out the steps to be taken in connection with the temporary disruption. A copy of this document must be made available to any person requesting it.

Employee Training on the ASCS

The next significant requirement for employers in Ontario to comply with the ASCS is the provision of training. Every provider of goods and services must ensure that designated persons receive training with respect to the provision of goods and services to persons with disabilities. A designated person includes every individual who deals with members of the public or third parties on behalf of the employer, and, every person who participates in the development of policies, practices and procedures governing the provision of goods and services to members of the public or third parties. Therefore, anyone who has any potential dealing with the public, or third parties must receive specific training.

The training must include a number of specific criteria including:

1. The review of the purposes of the Act and the requirements of the AODA;
2. How to interact and communicate with individuals with various types of disabilities;
3. How to interact with persons who use assistive devices or require a guide dog or the assistance of a support individual;
4. How to use equipment or devices at the business premises that may help in the provision of goods and services to an individual with a disability; and
5. Appropriate responses to an individual who is having difficulty accessing the provider's goods or services;

The training required by the ASCS must be given to each individual as soon as practicable after he or she is assigned applicable duties. Every employer in Ontario that employs at least 20 workers must prepare a written procedure describing the training policy, a summary of the contents of the training, and the details of when the training is to be provided, both initially and on an ongoing basis. This is available to scrutiny by the regulator. Every employer with at least 20 employees in Ontario must keep records of the training provided under the section and make it available to the regulator when requested.

Every provider of goods and services in Ontario must establish a process for receiving and responding to feedback about the manner in which they are providing goods and services to their customers. This feedback process must permit individuals to provide their feedback in person, by telephone, or in writing, electronic text, email, disc or otherwise, as a legal requirement of the ASCS. The feedback process must specify any actions that a business will be prepared to take if a complaint is received. Such documents must be kept by every employer with at least 20 employees in Ontario and be available to the regulator. Every business must also provide goods and services in a manner that is consistent with the ASCS.

Action Steps for Legal Compliance

The ASCS is the subject of recommendations and compliance guidelines of the Ministry of Citizenship and Immigration. Employers will be required to extensively review their own operations, policies and procedures and take the following steps to achieve compliance by December 31, 2011:

Step 1:     Conduct an ASCS Legal Assessment to identify the necessary compliance steps to be taken;

Step 2:     Prepare the necessary policies, procedures, and practices in writing to ensure that the new legal requirements are properly established, and also ensure that they do not compromise workers' health and safety;

Step 3:     Provide training and information to those implementing the provisions of the AODA and the ASCS; and

Step 4:     Ensure that the policies, procedures and documentation are complete to ensure that there is both legal compliance, and practical integration of these new legal requirements into the organization.

Gowlings has assembled a team of lawyers and consultants to help Ontario employers comply with the four steps before January 1, 2012. For further information on training, consulting and related legal advice, please contact Norm Keith at 1-866-862-5787 ext. 85699, or Cathy Chandler at 1-866-862-5787 ext. 87351.

* Mr. Keith leads the National Occupational Health and Safety and Workers' Compensation practice at Gowlings.
1.[1] Participation in Activity Limitation Survey 2006: Tables (Part VI) Health Statistics Division, Statistics Canada 2006