In 2005 the Accessibility for Ontarians with Disabilities Act ("AODA") was passed. The AODA was developed in recognition of the disadvantage and exclusion of Ontarians with disabilities from full participation in society, including barriers when accessing employment. The AODA requires the creation of regulations setting out accessibility standards for the identification, removal and prevention of barriers in areas of goods, services, facilities, accommodation, employment, buildings, structures and premises. Currently two standards are in place: the Accessibility Standard for Customer Service and the Integrated Accessibility Standards, which combined standards in several areas including information and communications, employment, transportation and the design of public spaces. In the first ten years since the legislation came into effect, organizations have faced the challenge of understanding and implementing the requirements of a complex set of legislative requirements.
Section 41 of the AODA requires a comprehensive review of the effectiveness of the legislation and regulations after the first four years of the section being in force and every three years thereafter.
The First Legislative Review was tabled in May 2010 and conducted by Charles Beer. The Beer Report proposed numerous key recommendations. In February 2015, the Second Legislative Review was released. Mayo Moran undertook the review in 2014 at an important juncture - almost ten years since the passage of the AODA into law and approximately ten years prior to the goals of 2025. The Second Legislative Review (the "Moran Report") also coincides with a new provincial government.
The Moran Report
The Moran Report documents several issues relating to the AODA and their potential impact to organizations.
Of particular importance to employers are comments which appear at page 45, referencing consultation comments:
Business and disability stakeholders both observed that the standards address the stages in the employment lifecycle but leave out measures to actually promote employment.
Several recommendations contained within the Moran Report are of important note for organizations addressing their obligations and anticipating enforcement activities by the Government.
Recommendation 1: Renew Government Leadership. The Moran Report repeats the Beer Report's call for a re-establishment of leadership and commitment by the Government of Ontario to accessibility and the momentum of the AODA. The Moran Report, while confirming the continued role of the Ministry of Economic Development, Employment and Infrastructure in addressing administration of the AODA, recommends the inclusion of an additional title of "Minister Responsible for Accessibility" to enhance the public profile of the AODA.
Recommendation 2: Enforce the AODA. This detailed recommendation addresses the elements required for an enforcement plan. More than 1,900 private sector audits were conducted in 2013. The Moran Report calls for increased transparency and recommends enforcement statistics be released at least every three months.
The AODA is enforced by a system of audits, which can lead to inspections, orders for compliance and Director's Orders with financial penalties. Prosecution can occur for those organizations who fail to respond to a Director's Order with the potential for significant fines of up to $50,000 per day for individuals and $100,000 per day for corporations.
Appeal of a Director's Order is brought before the License Appeal Tribunal. To date there are only a handful of reported appeal cases addressing requests for fine reductions. The limited jurisprudence will, of course, expand in the coming year to further inform the implementation of financial penalties and the factors considered in assessing such penalties.
Recommendation 3: Resource and Empower the Accessibility Directorate of Ontario to Provide Robust Compliance Support. This recommendation addresses the complexity of the model and the demands of implementation faced by organizations that are spending too much time and money trying to determine "how to satisfy even the most basic elements of the regime." The Moran Report recommends a simplification of the standards themselves "so that expectations are clear up front and elaborate explanations are unnecessary".
I strongly urge [the Accessibility Standards Advisory Council] and the Government to make simplification and clarify key objectives when reviewing the current standards or developing new ones.
Recommendation 5: Clarify the Relationship Between the Human Rights Code (HRC) and the AODA. The Moran Report recognizes the confusion between the HRC and the AODA and the importance of the Government to clarify the relationship.
There is a fundamental distinction between the HRC and the AODA. The HRC provides rights and obligations and provides for a complaint based system by individuals to enforce their rights. In contrast, the AODA is not a complaint based system but a system designed to remove systemic barriers to full participation. Confusion can easily arise as compliance with the HRC is not the same as compliance with the AODA. Compliance with the AODA legal requirements does not provide a complete defence to an allegation of breach of the HRC.
From a practical perspective, it is likely we will see enhanced enforcement activity and organizations should be ready to face an audit. Organizations should address issues arising from an audit or orders in a timely manner, whether by appeal or compliance, to avoid further prosecution and penalties. Time will tell whether steps will be taken to simplify the standards and address areas of confusion to further support organizations in addressing compliance.
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