This summer, the License Appeal Tribunal, which has jurisdiction
over the Accessibility for Ontarians with Disabilities Act,
2005 (the "AODA"), released its first decisions
pertaining to AODA compliance. When the first compliance deadlines
under the AODA rolled around there did not seem to be much
enforcement activity. Over the past two years, however, the
government has increased enforcement measures. Employers should be
aware of their AODA obligations and upcoming deadlines to avoid
Employers in Ontario have had to be compliant with the Customer
Service Standard of the AODA since at least January 1, 2012. In
order to prove compliance, employers with 20 or more employees were
required to file an Accessibility Report. The four recent AODA
decisions released by the License Appeal Tribunal pertained to
administrative penalties levied against organizations that failed
to file this Accessibility Report.
In all four cases, the Tribunal reduced the fine imposed by the
Director of the Accessibility Directorate of Ontario (the
"Director"). The Director had imposed a fine of $2,000 on
each of the organizations for failure to file an Accessibility
Report. Under the AODA regulations, there is a schedule in order to
assist the Director in determining the appropriate penalty. When
imposing an administrative penalty, the Director must take into
account the impact of the contravention and the contravention
history. For corporations, the administrative penalties range from
$500 to $15,000.
The Director imposed a penalty of $2,000 on each of these
corporations, on the basis that the failure to file an
Accessibility Report was a major contravention, since the AODA
relies on self-reporting to monitor compliance. However, the
Tribunal disagreed with the Director, finding that failing to file
an Accessibility Report was a minor contravention. Since this was
the first AODA reporting cycle, there was no contravention history
so this factor was neutral. With respect to the impact of the
contravention, under the AODA a contravention is considered to have
a major impact where, for instance, it may pose a health and safety
risk to persons with disabilities. In this case, the Tribunal found
that the contravention did not rise to this level. In three of the
decisions, the Tribunal reduced the fine to $500. In one decision,
the fine was reduced to $250 where the employer was a smaller
organization that no longer had 20 or more employees.
Although these financial penalties were not relatively steep,
this signals that the Director and the Tribunal are actively
engaged in AODA enforcement matters, and we could see harsher
penalties in the future. Much like a taxpayer is liable for
an offence for failing to file a timely return, but still may face
fines and penalties for taxes payable, so too employers who fail to
file timely Accessibility Reports may also face stiff penalties for
failing to meet other compliance requirements.
Moreover, administrative penalties are not the only enforcement
tool. Fines for offences under the AODA can reach up to
$50,000 for each and every day or part day that an offence happens
for individuals (and corporate directors) and up to $100,000 for
corporations. We have yet to see any reported decisions
involving prosecutions for offences under the AODA, but no doubt
they will be on the horizon.
On or before December 31, 2014, large private sector employers
(those with 50 or more employees) will need to file another
Accessibility Report. Commencing January 1, 2014, large private
sector employers had to be compliant with some new requirements
under the AODA Integrated Accessibility Standard, including the
creation of an Accessibility Policy and an Accessibility Plan.
Employers should review their current AODA obligations to ensure
that they are compliant. We will likely see increased enforcement
measures for failure to file this next Accessibility Report.
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.
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