Canada: Government of Ontario Passes Accessibility for Ontarians with Disabilities Act, 2004

The Province of Ontario recently passed Bill 118, the Accessibility for Ontarians with Disabilities Act, 2004. Although not officially law until it receives Royal Assent, which is simply a matter of time, Bill 118 is certainly a significant step towards making Ontario significantly more accessible to those with disabilities. As its title suggests, Bill 118 aims at reducing and ultimately eliminating barriers that those with disabilities face on a daily basis in Ontario.

Scope of Application

Bill 118 will be applied universally across Ontario. Unlike the current Ontarians with Disabilities Act, 2001, which only applies to the public sector (which will be repealed once Bill 118 receives Royal Assent), Bill 118 will apply to both the public and private sector. Although Ontario’s Human Rights Code currently prescribes a general duty to accommodate disabilities, which duty is incapable of precise and uniform definition, Bill 118 will set out specific accessibility standards for the accommodation of a full range of disabilities, including physical, sensory, hearing, mental health, developmental and learning disabilities.

Accessibility Standards

Under Bill 118, accessibility standards committees (comprised of community groups and industry stakeholders) will be formed. These committees will be responsible for developing accessibility standards for persons and organizations that (a) provides goods, services or facilities; (b) employs persons in Ontario; (c) offers accommodations; (d) owns or occupies a building, structure or premises or (d) engages in any other prescribed business, activity or undertaking.

Accessibility standards will require organizations to implement specific measures, policies or practices in order to identify and remove, and prevent the erection of, barriers for persons with disabilities. Each standard will identify the class of persons or organizations to which it applies and the specific measures, policies and practices that person or organization is required to adopt. Therefore, it is conceivable that an employer and its landlord may both in the future be subject to a single accessibility standard. The question will then be: who of the two (2) parties must address and incur any associated costs for complying with the standards? Parties should address these issues in their lease agreements, for instance.

Compliance

Once defined, accessibility standards will be mandatory and will be phased in over the course of a period of five (5) years or less. Organizations subject to any specific accessibility standard will be required to file annual accessibility reports with the Province of Ontario. These reports will be made available to the public.

Enforcement

The Province of Ontario promises to enforce Bill 118. It will appoint inspectors with the authority to inspect premises and workplaces and, where required, issue compliance orders. If an organization contravenes Bill 118, that organization may be ordered to file an accessibility report, comply with the standards and/or pay an administrative penalty. A number of offences are also defined in Bill 118, which will be punishable by way of substantial fines.

Furthermore, officers and directors will be required to exercise due diligence to ensure the corporation does not commit any offence under Bill 118, failing which officers and directors may be subject to substantial fines of up to $50,000.00 for each day or part day the offence continues. The Province of Ontario clearly means business when it comes to Bill 118.

Although accessibility standards have yet to be defined, it’s simply a matter of time. Organizations affected by this development (which includes employers, service and accommodation providers and building owners and occupants) are encouraged to review their operations, premises, practices and policies with a view of identifying and developing strategies to identify and remove barriers to those with physical, developmental and mental disabilities. Specifically, stakeholders should consider (1) establishing an accessibility working group, (2) identifying and listing accessibility barriers, (3) developing strategies to address barriers and (4) educating its inhouse staff, offices and directors.

Should you have any questions or comments, or wish further information, please do not hesitate to contact any member of our Employee and Labour Relations group.

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2005 McMillan Binch LLP

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