Orders Made by Director Under the AODA

Despite concerns from many that the government was lagging in its enforcement of the Accessibility for Ontarians with Disabilities Act (AODA), the Accessibility Directorate of Ontario (ADO) has been issuing orders to comply with the Act, particularly the section 14 requirement to produce and file an accessibility report with the directorate. Four of these orders have been appealed to the Licence Appeal Tribunal (LAT) and two have been reported on CanLII.

Since January 2012, the AODA Customer Service Standard has required all businesses in Ontario that provide goods and services to the public, and have at least one employee, to have policies in place explaining how they will offer accessible customer service to persons with disabilities. Employers with 20 or more employees were required to file an accessibility report by January 1, 2012. Failure to file a report may lead to a penalty.

A director will determine the amount of an administrative penalty according to the criteria set out in section 83 of the AODA Integrated Accessibility Standards Regulation (Ontario Regulation 191/11). These include the severity of the impact of the contravention, the history in the reporting cycle, the legal status of the organization and the penalty options found in the law.

A violation is minor if the contravention is in relation to an administrative requirement. A moderate contravention involves a requirement for organizational preparedness. A major contravention involves a priority requirement that includes, but is not limited to, a contravention that may pose a health or safety risk to persons with disabilities.

The Regulation also provides a schedule by which directors will calculate administrative penalties for corporations.

Organizations that receive an AODA order from the accessibility directorate may appeal within 15 days of the date the order was made.

1. 8750 v. Director under the Accessibility for Ontarians with Disabilities Act, 2005, 2014 CanLII 46587 (ON LAT)

Lafleur Restaurants Limited failed to file its accessibility report as required, and received a request to file an accessibility report from the ADO, and two subsequent default letters. The ADO finally issued an Order to the company to file its report and pay an administrative penalty of $2,000 under s. 21(3) of the Act, within 30 days.

Lafleur appealed the administrative penalty.

At the LAT hearing, Lafleur produced evidence that the company had instructed an employee to complete and file the report, but for whatever reason, the report was not filed before the company received the Order.

The tribunal found that:

“The ADO, in setting the administrative penalty at $2,000 has determined that filing a report is a priority requirement and failure to file is a ‘major’ contravention. However, the specific wording of section 83(1) requires the director to determine if the severity of the impact is minor, moderate or major in nature. Subsection 83(2)1 states that a contravention is minor where it involves the contravention of an administrative requirement.”

The tribunal decided that failing to file a report does not pose a health or safety risk to persons with disabilities and is in fact (although not stated explicitly in the law) a minor contravention that can be considered an administrative requirement. As a result, and because Lafleur acknowledged its obligations under the Act and its failure to comply, the tribunal reduced the administrative penalty of $2,000 to $500.

2) 8635 v. Director under the Accessibility for Ontarians with Disabilities Act, 2005, 2014 CanLII 53673 (ON LAT)

This case against J&A Creative Services Inc. revolves around the same issue as the case against Lafleur. J&A failed to file an accessibility report, and was ordered to pay an administrative penalty of $2,000. However, in this case, the director granted an extension of the time period for payment of the administrative penalty from 30 days to 45.

J&A ignored the orders to pay, claiming among other things that it is an internet-based business and no customers enter its premises, and that it has fewer than 20 employees. Nonetheless, J&A filed an appeal dealing only with the fine portion of the order.

Based on the same reasoning as in the Lafleur case, the tribunal reduced the administrative penalty of $2,000 to $250 because at the time of the requirement to report (2012), J&A had 24 employees on record. After that reporting period, at the time of the hearing, J&A had only 16 employees on record. The tribunal considered the diminishing number of employees (and the consequent exemption that would flow to the organization) a mitigating factor when assessing the extent to which this contravention might be considered to be “minor or “major.”

“On its face, the filing of a report, even in the context of a self-reporting regime, may be considered an administrative requirement. This conclusion is reinforced by the fact that for smaller organizations in particular, the legislature determined that a provider of goods and services with fewer than 20 employees need not file a report because it ‘allows the exempted organization to focus efforts on complying with the accessibility standards.’ It is accessibility which is the focus and priority of the Act. The reporting is a mechanism by which to measure that.”

Conclusion

The above two cases affirm that the director is actively enforcing the AODA, and the tribunal is supporting the enforcement and interpreting the administrative penalties section of the law as specified.

On or before December 31, 2014, obligated organizations with 20 or more employees must file a second report informing the ADO that they are still complying and achieving accessibility under the Customer Service Standard.

The Integrated Accessibility Standards Regulation, which came into force in 2011, provides details of what your organization must do to ensure accessibility in the areas of information and communication, employment, transportation, and the built environment in public spaces.

General and specific requirements under the three standards are being phased in between 2012 and 2025. Deadlines vary widely depending on the specific duty in question, as well as the type and size of employer. The Integrated Regulation requires that organizations address all of the factors under discussion through policies, procedures and practices, multi-year plans and training.

However, large private-sector organizations (those with 50 or more employees) will need to file an accessibility report indicating that, as of January 1, 2014, they complied with the general requirements under the Integrated Regulation, by developing a statement of organizational commitment (policies) that provides direction on how the organization will meet the requirements the Integrated Regulation and the needs of persons with disabilities in a timely manner. The same due date applies for the development of a multi-year accessibility plan that states the organization’s approach for the prevention and removal of barriers under the areas covered in the Integrated Regulation.

Subsequently, large organizations will be required to file an accessibility report under the Integrated Regulation for all three standards, information and communication, employment and transportation, every three years.

Obligated organizations should review their current AODA obligations to ensure that they are compliant before it is time to report.