In Ontario, the Accessibility Directorate of Ontario has been increasingly active in pursuing enforcement actions against organizations that have not complied with their requirements under the Accessibility for Ontarians with Disabilities Act (AODA). On February 20, 2014, the Toronto Star reported that the Ministry of Economic Development, Trade and Employment is planning to conduct 1,700 compliance audits this year to ensure that organizations carry out their AODA Customer Service plans. Last November, the Ministry issued 2,500 enforcement letters to organizations that had failed to submit compliance reports in accordance with the Accessibility Standards for Customer Service (the Customer Service Standards).
How do these AODA requirements apply to franchisors and franchisees? Is your organization aware of its accessibility requirements with respect to policies, training and new websites?
Our top six frequently asked questions and answers are summarized below.
- Does the AODA apply to franchisors and franchisees?
Franchisors and franchisees are subject to the same requirements as any other organization. Most organizations, including franchisors and franchisees, that employ at least one employee in Ontario and provide goods, services or facilities are required to comply with the AODA and its regulations: the Customer Service Standards and the Integrated Accessibility Standards.
These regulations set out a number of accessibility requirements for organizations regarding customer service, information and communications, employment, transportation and the design of public spaces. These requirements include creating policies and plans, providing training, posting certain notices, establishing a feedback process and filing compliance reports.
Further, organizations with 50 or more employees are required to prepare additional policies, create a multi-year accessibility plan and ensure that new websites conform to accessibility guidelines. Depending on the nature of the organization, there may be additional requirements that should be considered. A number of additional requirements will also come into force over several years on a rolling basis. For example, effective January 1, 2015, organizations with 50 or more employees will be required to provide additional training to their employees, as well as to ensure that their processes for receiving and responding to feedback are accessible to persons with disabilities.
For more information regarding the specific requirements under the AODA, our AODA Resource page provides links to a number of helpful resources, including the following:
- Our AODA Compliance Checklist, which provides a summary of the most common legal requirements for private sector organizations that are either currently in effect or will take effect January 1, 2015;
- Articles and guides, including a previous Osler Update that provides an overview of certain requirements (including the requirement for new websites) that came into force effective January 1, 2014; and
- The Ministry's AODA Compliance Wizard, which is a tool that can be used to help determine which AODA requirements apply to an organization.
Useful guidance materials have also been developed by various stakeholders, including policy and procedures templates and a franchise compliance manual created by the Canadian Franchise Association.
- Who enforces the AODA?
The AODA and its regulations are enforced by the Ministry of Economic Development, Trade and Employment and the Accessibility Directorate of Ontario.
Under the Integrated Accessibility Standards, administrative penalties for corporations range from $500 to $15,000 per contravention (depending on the severity of the impact of the contravention and the contravention history of the organization), up to a maximum daily penalty of $100,000. Failure to comply with an enforcement order could result in fines of up to $100,000 per day for corporations and up to $50,000 per day for directors and officers.
- Are franchisors and franchisees required to file compliance reports?
As with any organization that provides goods or services to members of the public, if a franchisor or a franchisee has 20 or more employees in Ontario, it was required to prepare certain documents and file a compliance report in accordance with the Customer Service Standards by December 2012. The compliance report can be filed online and requires organizations to answer a number of questions regarding their compliance with the Customer Service Standards.
Franchisors and franchisees with 20 or more employees in Ontario will also be required to file a second accessibility compliance report by December 31, 2014.If the franchisor or franchisee employs 50 or more employees in Ontario, it will be required to answer questions regarding its compliance with the Integrated Accessibility Standards, as well as the Customer Service Standards.
- How do organizations count the number of employees they have in Ontario for the purposes of the AODA?
An organization (including a franchisor and a franchisee) must include all full-time, part-time, seasonal and contract employees when counting the number of employees for the purposes of the AODA. Volunteers and independent contractors should not be included in the employee count.
Compliance reports are filed according to an organization's nine-digit business number (BN9). Organizations with more than one BN9 are therefore required to file a separate report for each BN9 with 20 or more employees. We note that in determining whether an accessibility standard should apply to an organization, a director has the power to order two or more organizations to be treated as one organization under the AODA.
- Have any other provinces enacted legislation that is similar to the AODA?
The Accessibility for Manitobans Act (AMA) came into force on December 5, 2013, and is similar to the AODA in that it sets out a framework for developing accessibility standards in Manitoba. Although no standards have been established under the AMA to date, the Manitoba Disabilities Issues Office has published the Terms of Reference for the Customer Service Accessibility Standards Development Committee on its website and a representative of the office has confirmed that the Customer Service Accessibility Standards will be the first standards developed under the AMA. An organization that commits an offence under the AMA can be liable on summary conviction for a fine of up to $250,000.
In addition to the requirements under accessibility legislation, every province has human rights legislation that prohibits discrimination based on disability.
- Can a franchisor and its franchisees have different obligations under the AODA?
The franchisor and its franchisees may have different obligations under the AODA, depending on the number of their employees in Ontario. Different franchisees may also have different obligations from each other. For example, a franchisee with only 5 employees in Ontario will have different AODA requirements from a franchisee that employs 50+ employees in Ontario.
As with any law, it is up to each franchisee to ensure compliance with the AODA; however, to ensure a consistent customer service experience and reduce the risk of non-compliance (which could result in damages to the franchisor's brand), franchisors may wish to consider assisting with an AODA compliance program for all franchisees in Ontario.
We recommend that franchisors and franchisees review their requirements and develop an overall compliance strategy, which may include reviewing consumer-facing material and customer communication methods to ensure that they take into account potential accessibility issues and to ensure that new websites (including existing websites that undergo a significant refresh) comply with the AODA requirements, as necessary. The accessibility requirements under the AODA apply not only to franchisees in the course of their dealings with their customers, but also to the franchisor in the course of its dealing with its customers, which may include franchisees.
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.