Ontario’s AODA progress

The accessibility for Ontarians with Disabilities Act (AODA) has been in effect for more than five years now, with certain parts for less. HR lawyer Pamela Chan Ebejer looks at how well Ontario employers have adapted and what questions still remain.

When the first wave of compliance requirements under the Accessibility for Ontarians with Disabilities Act, 2005 (AODA), came into effect on Jan. 1, 2012, many employers feared an overwhelming set of new compliance requirements to meet. Employers were kept on their toes with the staggered deadlines year after year, as well as the comprehensive accessibility standards that spanned five areas including customer service, information and communications, employment, and the design of public spaces. At the same time, the AODA has faced questions and criticisms about how the legislation would be enforced given that it lacks an individual complaint mechanism.

While the accessibility standards under the AODA have required many organizations to alter or reconsider how they interact with, provide information to and accommodate customers, employees and the public, organizations appear to have adjusted well to the new requirements. The Accessibility Directorate of Ontario released its Accessibility compliance and enforcement report 2016 in July 2017, which outlined the results of its audit and enforcement activities that occurred throughout 2016. The results of compliance were positive, with the report concluding that “overall, many organizations are incorporating accessibility into their daily business practices.”

The report’s conclusion was based on the results of 1,604 compliance activities conducted by the directorate. The bulk of the compliance activities were split between Phase 1 and Phase 2 audits. Phase 1 audits focused on an organization’s requirement to submit a self-certified accessibility compliance report online and Phase 2 audits examined an organization’s compliance with the AODA by requesting documentation to verify compliance.

A total of 1,205 Phase 1 audits were completed in 2016 for organizations that had never filed an accessibility compliance report, reported they had not met their requirements under the law, or had filed an accessibility compliance report in 2012 but not 2014. The directorate found the following trends:

• 93 per cent provide emergency procedure plans or public safety information to the public in an accessible format, when asked

• 89 per cent provide customized emergency response information for their employees who have disabilities, when asked

• 81 per cent comply with the requirements under the Customer Service Standards.

Fully 361 audits were conducted at Phase 2. The organizations audited at this level included those required to provide evidence of compliance as represented in their filed compliance report, or organizations that failed to be compliant at Phase 1. For small organizations (one to 49 employees) from the business/non-profit sector, the rates of compliance were the following:

• 64 per cent have accessibility policies

• 63 per cent provided accessibility training

• 92 per cent established a method to receive and respond to public feedback on accessibility.

The directorate found the following trends amongst all Phase 2 organizations:

 • 92 per cent notified employees and the public about the availability of accommodation for applicants with disabilities in the recruitment process

• 90 per cent provided individualized workplace emergency response information for employees with disabilities

• 68 per cent provided accessibility training to staff, volunteers and contract workers as soon as practicable.

Of the 361 organizations audited at Phase 2, the directorate issued compliance plans to 45 per cent. The compliance plan contained specific steps for an organization to take in order to meet its legislative requirements. Eighty-four percent of organizations that received a compliance plan met its obligations without an inspector being sent. In fact, of the 1,604 compliance activities conducted, inspectors were only sent to 38 organizations and monetary penalties were only levied on two of those organizations.

Targeted audit blitzes were also conducted across 125 organizations focusing on the employment standards requirements of the Integrated Accessibility Standards Regulation to notify of the availability of accommodation for applicants with disabilities in the recruitment process and to notify successful applicants of policies for accommodating employees with disabilities when making offers of employment. The results were the following:

• 87 per cent notified their employees of available accommodations for applicants with disabilities during the recruitment process

• 81 per cent notified successful applicants of their policies for accommodating employees with disabilities

• 22 compliance plans were issued and all deadlines in the compliance plans were met with no requirement to enforce.

The report concluded that the directorate would continue its compliance and enforcement activities into 2017 by increasing compliance efforts for all organizations, increasing targeted audit blitzes and continuing to audit the employment standards requirements to ensure workplaces maintain a minimum level of accessibility.

Question of enforcement

While the report’s results suggest Ontario is moving towards the goal of being an accessible province by 2025, the AODA continues to be criticized for being legislation that cannot be completely enforced. The report’s results indicate there are still a number of organizations that have not met the standards reviewed as part of the compliance activities, and these organizations should be wary as the directorate can impose fines of up to $50,000 per day for individuals and unincorporated organizations, and up to $100,000 per day for corporations. Organizations will be happy to know that to date, we have yet to see such fines levied on any individual or organization. There have only been two reported cases considered by the Licensing Appeals Tribunal, which hears appeals of directorate orders or decisions, and both cases were related to the failure to file compliance reports resulting in small monetary penalties of $250 and $500.

The criticism of the AODA’s enforcement comes largely from the absence of any mechanisms for an individual to file a complaint with the directorate against an organization for non-compliance with the AODA. Rather, the AODA relies on the directorate to identify, initiate and enforce compliance on organizations, which has been largely done through organizations filing accessibility compliance reports as opposed to receiving complaints.

Some individuals have attempted to use the Human Rights Tribunal of Ontario to enforce the AODA by filing applications alleging discrimination on the basis of disability. Even though the tribunal has been clear it has no jurisdiction to consider violations of the AODA, the Ontario Human Rights Code and AODA are companion legislation. While a complaint before the tribunal must be grounded in a violation of the code — that is, the applicant must show that he has been mistreated in a recognized area such as employment or services on the basis of a prohibited ground, such as disability — there is overlap between the requirements under the code as it relates to disability and accommodation, and the accessibility standards under the AODA.

This overlap could be seen in Cockburn v. YMCAs of Southwestern Ontario, where the applicant alleged discrimination in services on the basis of disability when the service provider refused to pay the cost of providing an American Sign Language (ASL) interpreter for a meeting to update the applicant’s exercise plan. The applicant also alleged that the refusal to pay for the cost of the ASL interpreter violated the AODA.

In its reasoning, the tribunal began by confirming its lack of jurisdiction to interpret and apply the AODA. Then, it reviewed established human rights principles — specifically, service providers have a duty to accommodate persons with disabilities under the code.  While the tribunal did not explicitly make this statement, the code’s duty is similar to the requirement under the AODA that service providers remove barriers to accessible service, information and communications for those who have a disability as recognized under the code.

Ultimately, the tribunal in YMCA applied a human rights analysis and found that the applicant did not experience discrimination in services on the basis of disability. The applicant was unable to show that he required an ASL interpreter or explain why other forms of communication — such as e-mail or text — that had been offered, did not meet his medical limitations. His request for an ASL interpreter was a preference, when the service provider was only required to provide reasonable accommodation.

When comparing the information and communications standards under the AODA, there is no explicit requirement that organizations provide the specific accessible format or communication support, such as an ASL interpreter, that has been requested by the person with a disability. Rather, the requirement is to “provide or arrange for the provision of accessible formats and communication supports for persons with disabilities.” Providing accessible formats and communication supports must be done in a timely manner and in consultation with the person making the request, which have the markings of the procedural duty to accommodate under the code.

It should also be noted that meeting accessibility standards could be used as evidence in a human rights proceeding. While the tribunal does not enforce the AODA, an organization’s accessibility policies may be relevant evidence, as was the case in McMahon v. U-Haul Co. (Canada) Ltd. There, the tribunal ordered the production of documents proving the respondent had trained its employees as required by the AODA because the information was arguably relevant to the issues in the application.

To be clear, an individual remains unable to enforce the AODA by making a complaint to the directorate, but an individual with certain facts could shape a violation of the AODA into a human rights application that the tribunal would adjudicate within the human rights framework. To this end, the directorate’s report suggests organizations have been compliant on the whole when it comes to the AODA, and employers are encouraged to continue diligently meeting their AODA requirements. Organizations should be aware that the code and the AODA may be complementary, but strictly meeting the requirements under the AODA does not necessarily equate to having completely discharged their duty to accommodate under the Code.

For more information see:

• Cockburn v. YMCAs of Southwestern Ontario, 2016 HRTO 1451 (Ont. Human Rights Trib.).

• McMahon v. U-Haul Co. (Canada) Ltd., 2012 HRTO 543 (Ont. Human Rights Trib.).