Ontario AODA Compliance and Enforcement 2016 Report

On June 21, 2017, the Ontario Accessibility Directorate tabled the accessibility compliance and enforcement report for 2016. The report outlines the Directorate’s activities in 2016 to oversee compliance with the Accessibility for Ontarians with Disabilities Act and its accessibility standards.

Highlights of the report

The Directorate activities included:

• participating in over 80 events across the province such as community fairs, trade shows and business conferences
• launching two updated newsletter formats reaching over 6,000 subscribers:
• a quarterly edition about what’s new in their accessibility work
• a monthly bulletin that highlights helpful tools and tips to meet accessibility requirements
• delivering 18 webinars to all obligated sectors providing additional information and answering questions on the requirements of the standards
• sending over 30,000 reminder emails to organizations about their upcoming requirements and compliance reporting

In addition, the report indicates that the Directorate’s help desk provided assistance through thousands of one-on-one interactions with organizations and individuals to offer support by answering questions about the act and its standards, providing assistance to encourage compliance with Ontario’s accessibility laws.

Most importantly, in 2016, the Accessibility Directorate conducted 1,604 compliance activities, including phase 1 and phase 2 audits.

As explained in the report,

• Phase 1 audits focus on an organization’s requirement to submit a self-certified accessibility compliance report online.
• Phase 2 audit documents are requested and reviewed for the purposes of verifying compliance with other requirements beyond reporting. While organizations can be selected for audit whether they submit a report or not, a large component of compliance activities center around organizations that have failed to file their most recent report.

Results from phase 1 audits

In 2016, 1,205 audits were completed at the phase 1 level among organizations that had either:

• never filed an accessibility compliance report;
• reported they had not met their requirements under the law; or
• filed a report in 2012, but not in 2014.

In conducting these activities, the Directorate observed a number of trends in compliance:

• Of the phase 1 audits initiated in 2016, 95 percent were completed without requiring escalation to phase 2 or enforcement, aligning with the overall compliance assurance approach.
• A progressive approach to compliance reduces the need for punitive enforcement measures by providing upfront education, resources and 1:1 compliance improvement opportunities that help organizations understand and meet their requirements.
• 93 percent answered “yes” to providing emergency procedure plans or public safety information to the public in an accessible format, when asked.
• 89 percent responded that they provided tailored emergency response information for their employees who had disabilities, when asked.
• 81 percent were complying with the requirements of the Customer Service Standards that came into effect prior to the reporting year, according to their submitted accessibility compliance reports.

By December 31, 2016, 43 percent of business/non-profit sector organizations had submitted their most recent version of the accessibility compliance report, up from 38 percent in 2014.

Results of phase 2 audits

In 2016, 361 audits were closed at the phase 2 level. These audits requested evidence to either confirm compliance from organizations that had filed a fully compliant report or assist those that had failed to be compliant at phase 1. They were audited on a variety of requirements across the standards and not all organizations were audited on the same set of requirements.

For example, in 2016, a selection of small organizations from the business/non-profit sector were audited on three foundational requirements. Their rates of compliance were:

• Develop accessibility policies: 64 percent
• Provide accessibility training: 63 percent
• Establish a method to receive and respond to public feedback on accessibility: 92 percent

Among phase 2 organizations, the following trends were found:

• 92 percent notified employees and the public about the availability of accommodation for applicants with disabilities in their recruitment process.
• 90 percent provided individualized workplace emergency response information for employees with disabilities.
• 68 percent provided accessibility training to staff, volunteers and contract workers as soon as practicable.

According to the report, the Directorate issued compliance plans to 45 percent (164) of the 361 organizations selected for phase 2 audit in 2016. As explained in the report, a compliance plan lays out the steps an organization must take to be compliant. It is confirmed that an organization has put these prescribed steps in place before the plan is considered closed or completed. 84 percent (138) of 164 organizations that received a plan were made compliant without the involvement of an inspector.

Of the 1,604 compliance activities that took place in 2016, 38 were sent to an inspector with only two requiring monetary penalties.

Organizations that are uncooperative in responding to requests, including meeting compliance plan due dates, are referred to an inspector. An inspector can either conduct an on-site inspection or recommend enforcement measures to the Director appointed under the Act. Enforcement may include a Director’s Order to comply, a monetary penalty and prosecution.

Target audit blitz

Each year the Directorate conducts a targeted audit blitz intended to focus on a specific sector, verifying compliance with specific requirements. The 1,604 compliance activities included a targeted phase 2 audit blitz of 125 large organizations from Ontario’s hospitality sector.

The blitz focused on the Integrated Accessibility Standards Regulation employment standards requirements to:

• notify employees and the public about the availability of accommodation for applicants with disabilities in the recruitment process; and
• notify successful applicants of policies for accommodating employees with disabilities when making offers of employment.

Out of 125 organizations audited as part of the blitz:

• 109 or 87 percent notified their employees of available accommodations for applicants with disabilities during the recruitment process;
• 101 or 81 percent notified the successful applicants of their policies for accommodating employees with disabilities; and
• 22 compliance plans were issued. All compliance plan deadlines were met and no organizations required enforcement measures.

Compliance activities conducted in 2016 reveal that overall many organizations are incorporating accessibility into their daily business practices.

Compliance and enforcement going forward

In 2017, the Directorate is currently conducting compliance and enforcement activities that aims to:

• increase compliance reporting rates among business/non-profit sector organizations;
• raise awareness among obligated organizations of their requirements under the Act;
• allow compliance verification and conduct enforcement activities among a greater number of organizations; and
• support the implementation of a Provincial Employment Strategy for people with disabilities.

The results of these activities will be made available in the next Accessibility Compliance and Enforcement Report in 2018.

So what do people think of the AODA enforcement report?

Despite what the report states, accessibility advocates and activists still state that the government is not doing enough to curb rampant private sector violations of the Accessibility for Ontarians with Disabilities Act . While the fines for non-compliance are steep (up to $100,000 per day), the government relies completely on the Ontario Accessibility Directorate to identify, initiate and enforce compliance. An order or decision of the Directorate may be appealed to the Licensing Appeals Tribunal. To date, relatively few cases with respect to violations of the AODA have been adjudicated before the Tribunal. These cases generally concern administrative penalties associated with the filing of Accessibility Reports. In the majority of these cases, the Tribunal was of the opinion that the contraventions were properly characterized as “minor” and, as a result, the Tribunal significantly reduced the amount of the penalty (i.e. from $2,000 to $500 or less).

Complaints under the AODA or the Integrated Accessibility Standards Regulation cannot be filed by an individual to the Ontario Accessibility Directorate.

The lack of mechanism within the AODA for individual driven complaint to the Directorate or the LAT against one’s employer or an organization, shows that the AODA cannot be fully enforced.

The ability to complain individually to the Human Rights Tribunal of Ontario is implied. However, it is just not enough or adequate according to advocates. The problem, the HRTO is not expressly referenced in the AODA legislation as the mechanism for individual complaints.

HRTO cases involving both public and private organizations that refer to AODA violations are few and far between.

The problem is compounded by the statement of the HRTO in Bishop v. Hamilton Entertainment and Convention Facilities Inc. dealing with an AODA related case were the HRTO declined to reference the AODA standards and concluded the following:

“The Tribunal does not enforce the AODA. There is a statutory framework for Director’s orders and administrative penalties set out in the AODA at sections 21 to 25.”

The HRTO continues to repeatedly conclude that it lacks jurisdiction with respect to the AODA (Clipperton-Boyer v. McDonalds Restaurants of Canada Limited, 2016 HRTO 967 (CanLII), para 20; Thomas v. Sobeys Capital Incorporated, 2014 HRTO 299 (CanLII), para 25; and Martel v. Ontario (Community and Social Services), 2014 HRTO 1367 (CanLII), para 15.)

Accordingly, the statutory framework within the AODA for Director’s orders, administrative penalties and fines remains the only mechanism for enforcing the AODA and the IASR. Therefore, enforcement of the AODA remains dubious at best.