Copyright 2011, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Accessibility for Ontarians with Disabilities Act, March 2011
The Accessibility for Ontarians with Disabilities Act (the AODA) came into force in 2005 and charged the Ministry of Community and Social Services (the Ministry) with the goal of making Ontario completely accessible for persons with disabilities by January 2025. The AODA itself does not create many specific obligations. Rather, it mandates the creation of standard development committees in five general areas: Customer Service, Transportation, Employment, Information and Communication and Built Environment. These standard development committees are tasked with creating draft standards in each area that are designed to remove or prevent barriers to accessibility, and then submit the standards to the government for review and enactment as regulation. Collectively, the AODA and the standards enacted under the legislation will require organizations operating in Ontario to be more proactive in ensuring accessibility in their activities to promote the participation of individuals with disabilities in all aspects of Ontario society. To date, only the Customer Service Standard has been enacted.
The Accessibility Standards for Customer Service Regulation (the Customer Service Standard) came into force on January 1, 2008. It sets out various requirements for ensuring that providers of goods and services in Ontario have policies in place that accommodate the needs of customers with disabilities and make the provision of goods and services accessible to those customers. Beginning on January 1, 2012, almost all businesses operating in Ontario will be required to comply with the Customer Service Standard. As the AODA is Ontario law, it applies only to the provision of goods or services that are under the jurisdiction of the Ontario government. Organizations under federal jurisdiction, such as banks and airlines, are not required to comply with the AODA.
WHAT DOES THE CUSTOMER SERVICE STANDARD MEAN FOR YOU?
Who does the Customer Service Standard apply to?
- The Customer Service Standard applies to designated public-sector organizations in Ontario – including all ministries of the Government of Ontario and all Ontario municipalities – and every other person or organization that provides goods or services to the public or other third parties and that has at least one employee in Ontario (the Providers).
- Public-sector organizations were required to comply with the Customer Service Standard as of January 1, 2010. Private sector and not-for-profit organizations must be compliant as of January 1, 2012.
- The Customer Service Standard is not limited to organizations that provide goods or services to endconsumers. It also applies to businesses that provide goods or services to third parties (i.e., other businesses or organizations), such as manufacturers, wholesalers and providers of professional services.
- Any organization subject to the Customer Service Standard must ensure that any third parties that it contracts with for purposes of providing goods or services to the public are also compliant. As a result, given that designated public-sector organizations were required to comply with the Customer Service Standard as of January 1, 2010, any private-sector organization seeking to contract with the public sector for purposes of providing goods or services to the public, can expect to see compliance with the AODA and the Customer Service Standard be a condition of being awarded business under government-issued requests for proposals and quotations in Ontario. Such organizations may also be asked to certify to this compliance at the time of the award and on a regular basis thereafter.
What does the Customer Service Standard apply to?
- The Customer Service Standard only applies to services provided to the public or other third parties. It does not apply to services provided internally within an organization, such as to or for employees. Obligations relating to recruiting, hiring and retaining persons with disabilities, will be set out in the Integrated Standard, which addresses standards for employment, transportation, and information and communications. The Integrated Standard has been submitted to the government in draft form for consideration.
- The Customer Service Standard does not set accessibility requirements for the products or services themselves, but rather the way in which the products or services are provided. For example, electronics manufacturers are not required to create products that provide for both a visual and a "talking" informational display, but would be required to market and sell those products, or address complaints or warranty issues with respect to those products, in a manner that is accessible to persons with disabilities.
What does the Customer Service Standard require?
- The specific obligations under the Customer Service Standard generally relate to the implementation of, and adherence to, policies and procedures, the institution of notice requirements and the need to provide training.
- With respect to providing goods and services to people with disabilities, Providers are required to use reasonable efforts to adopt and implement flexible policies, practices and procedures that can be adapted to the needs of individuals with a variety of different disabilities. The guiding principle for establishing these policies and procedures is that they must further the AODA's core principles of independence, dignity, integration and equality of opportunity.
- In addition to the general requirement described above, there are various specific polices that Providers must implement. One example is the requirement to adopt a policy in respect of the use of assistive devices (such as screen-reader software) to enable individuals with disabilities to access the goods and services provided. The policies must also identify any assistive devices (such as telephone teletype (TTY)) that Providers offer to assist individuals with disabilities with use of its services.
- Providers are required to develop alternative methods of communication with their customers that take into account the needs of individuals with various types of disabilities. Examples may include providing written documents in large print, braille or audio-video format, or using assistive devices such as TTY or close captioning.
- Individuals with disabilities who use the assistance of a support person must be able to access the premises of any business. If admission fees are charged, the Provider must provide notice ahead of time on what admission, if any, would be charged for a support person. If a Provider is of the view that an individual's access to any premises without the use of a support person poses an actual (not perceived) health and safety threat, the Provider may require that a support person be present.
- Service animals must be allowed on business premises that are owned and operated by the Provider and which are accessible to the public or third parties unless the presence of animals is prohibited in a particular area by another law (such as the Food Premises regulations under the Health Protection and Promotion Act (Ontario) or the Food Safety and Quality Act (Ontario)).
- Providers must establish a process for receiving and responding to feedback on the provision of goods and services to individuals with disabilities, and ensure that the public is aware of the feedback process.
- In the event of a temporary disruption of any service or facility used by persons with disabilities to access a Provider's goods or services, the Provider must provide a notice of the disruption as soon as possible, including a description and the expected duration of the disruption and any alternative means of accessing the Provider's goods or services.
- Provides must ensure that all people who deal directly with the public on behalf of the Provider (or influence the development of the Provider's policies, practices and procedures) receive specific and ongoing training on providing goods and services to persons with disabilities (such as how to interact with people with various types of disabilities, how to interact with persons who use assistive devices, how to use equipment or devices that may help provide goods or services to individuals with disabilities, and what to do if a person with a disability is having difficulty accessing an organization's goods or services).
- Organizations with 20 or more employees (as well as all public-sector organizations) are subject to additional requirements, including:
- keeping records of the training provided, including the dates upon which it was provided and the number of individuals in attendance;
- documenting in writing their policies and practices;
- notifying the public of the availability of such documentation, and ensuring that these documents are in a format that takes account of an individual's disability; and
- filing with the Director, on an annual basis, an accessibility report that attaches the organization's documented policies, practices and standards relating to the provision of goods and services to people with disabilities, a description of the steps that will be taken to provide notice of a temporary disruption of services or facilities used by persons with disabilities, a summary of the training program implemented and dates on which it was provided during the applicable year, as well as a description of the process for receiving, accepting and responding to feedback.
Overlap of the AODA and the Human Rights Code
- Compliance with the AODA and the Standards enacted under that legislation does not diminish the obligations imposed by any other law relating to the accommodation of persons with disabilities, such as the Human Rights Code. As a result, organizations will still be required to accommodate persons with disabilities to the point of undue hardship.
ENFORCEMENT OF THE AODA
- The AODA provides for extensive enforcement powers and obligations designed to ensure compliance with the legislation. For instance, inspectors appointed under the AODA may enter premises without search warrants to determine whether an organization is complying with its legislative obligations. In addition, the Director appointed under the AODA has the authority to issue administrative penalties and non-compliance orders. Failure to comply with such an order is punishable by a fine of up to C$50,000 for each day of non-compliance by an individual, and up to C$100,000 for each day of non-compliance for a corporation.
- It is also an offence for a director or officer of a corporation to fail to carry out his or her duties under the AODA. Furthermore, all directors and/or officers of a corporation must take reasonable care to prevent the corporation from committing an offence. Failure to do so is an offence in itself, and directors and/or officers of a corporation are liable to the fines outlined above for failure to comply with an order.
- Notwithstanding the many enforcement options available, the Directorate's message is that it aims to work with organizations to come into compliance, rather than using enforcement tools.
Though it is unclear how the looming provincial election will impact the final form of the Integrated Standard and the Built Environment Standard (both of which have already been submitted to the Ministry for consideration), organizations should nevertheless be aware that obligations and requirements in these areas are forthcoming and may be extensive. The Built Environment Standard will likely represent the most technical and detailed of the standards and is expected to apply to all new construction and any extensive renovations to existing built environments.
Organizations will need to take steps to comply with the Customer Service Standard before the January 2012 deadline, which will require advance planning. Organizations will also want to monitor for the enactment of the other standards and the timelines for compliance imposed by these standards, given that the planning, cost, lead time and other implications are likely to be extensive.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.