A recently launched class action lawsuit in California should
be noted by all Canadian businesses that make use of debit and
credit card machines for customer transactions.
Two wheelchair-bound Californian women recently launched a
class action lawsuit against Wal-Mart, claiming that its debit and
credit card machines may be out of reach for people with
disabilities. The suit advises that people who use wheelchairs and
other assistive devices may not able to swipe their own credit or
debit cards at check out. In this instance, customers must then
hand their cards to the customer service representative, with whom
they must also share their private pin numbers or passwords.
According to the claim, Wal-Mart has refused their requests to
lower their card machines. The lawsuit alleges that Wal-Mart's
refusal to lower the height of the machines is discriminatory and a
violation of the claimants' civil rights. The lawsuit also
cites an alleged violation of the Americans with Disabilities
Act of 1990 ("ADA") and the California Disabled
While the class action is still in its infancy – in fact
the claimants have yet to specify the damages they are seeking
– the case should raise awareness of the potential for
similar claims regarding credit and debit card machines on this
side of the border.
Applicable legislation in Canada is predominantly determined by
Ontario has similar legislation to the ADA, called the
Accessibility for Ontarians with Disabilities Act, 2005
(AODA). The AODA applies to every person or organization in the
public and private sectors of the province that has at least 1
employee. The broad plan of the AODA is to achieve accessibility
for Ontarians with disabilities with respect to goods, services,
facilities, accommodation, employment, buildings, structures and
premises by 2025. The first accessibility standard deals with
customer service and had an ultimate compliance deadline of January
1, 2012 for the private sector.
In Alberta and British Columbia, there is no legislation similar
to California's ADA or Ontario's AODA. However, in most
provinces, claims can be brought under provincial human rights
legislation, which provides protection to persons with disabilities
in a variety of contexts. Importantly, such legislation prohibits
discrimination in the provision of services on the basis of, among
other things, disability or handicap, and generally speaking,
requires that all facilities or services customarily available to
the public, be accessible to people with disabilities unless doing
so would constitute an undue hardship.2 In general, all
entertainment and hospitality facilities, including restaurants,
must be accessible to people who use wheelchairs, unless it would
be an undue hardship for the service provider to make the facility
Human rights legislation in Canada has been used to require taxi
companies to offer 24 hour wheelchair accessible taxi service; to
require a movie theatre to have a staffed and accessible entrance
open during business hours so as to allow "patrons with
disabilities to enter the theatre in the same way as able-bodied
persons; and to make a pathway accessible following a complaint of
discrimination based on the complainant's inability to use the
pathway due to the fact that she was in a wheelchair to require a
transit authority to announce stops on all bus and subway routes
for the benefit of the visually impaired.
Could a claim similar to the Wal-Mart class action occur in
Canada? The collective provisions of the AODA and provincial human
rights legislation may provide some impetus for the pursuit of
claims against Canadian businesses. Precisely what form those
claims might take in law, and whether they might be brought before
the courts as a class action, remains to be seen. In the meantime,
retailers and service providers who make use of credit and debit
machines for their customers and clients might want to examine
access to their machines by those with disabilities in order to
determine if there might be challenges there, and if so, if they
can be remedied.
1Wal-Mart Stores sued by disabled customers
over hard-to-reach payment machines:The Winnipeg
Free Press Online Edition, posted July 25, 2012;Wheelchair users sue Wal-Mart in class action
case:MercuryNews.com, posted July 26,
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