ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

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WILL THE MCGUINTY GOVERNMENT KEEP ITS ELECTION PROMISE OF EFFECTIVE ENFORCEMENT FOR THE ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT?

June 15, 2010

SUMMARY

In the 2003 provincial election, Dalton McGuinty promised that the Disabilities Act his Government would pass would have effective enforcement. Seven years later, and half a year after the first accessibility standard went into effect under the Accessibility for Ontarians with Disabilities Act, we are only now learning some limited details about what enforcement there will be.

On May 31, 2010, the McGuinty Government announced that the provincial Licence Appeal Tribunal will hear AODA appeals. We do not know whether that Tribunal has any expertise in disability and accessibility issues. The Government has also announced that it plans to set a maximum amount of $15,000 for monetary penalties under the AODA that the Government can impose where an organization does not comply with an accessibility standard. If an organization disobeys a Government order to comply with the AODA, or does not pay that monetary penalty, the Government can later prosecute the organization and get fines of up to $50,000 or $100,000 per day of this violation.

The Government released its announcement of these enforcement steps on May 31, 2010, in a low-profile manner, buried in a “backgrounder” attached to a May 31, 2010 McGuinty Government news release that had the headline “McGuinty Government Breaking Down Barriers While Supporting Business”. That news release was issued at the same time the McGuinty Government made public the Report of the Government-appointed Charles Beer Independent Review of the AODA.

The McGuinty Government is far behind schedule in setting up the effective enforcement that it promised. It is clear that the Government is making key decisions on this enforcement process without meaningfully consulting the disability community. It is far from clear that this enforcement will be effective.

Below we set out

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MORE DETAILS

1. What the McGuinty Government Announced on May 31, 2010 Re the AODA’s Enforcement

The backgrounder to the news release, set out in full below, says the following regarding the AODA’s enforcement:

* “In order to effectively enforce these new standards, the government is developing a system of monetary penalties to be used in cases of non-compliance, as well as an appeals tribunal.”

* (At the bottom of the backgrounder) “Monetary Penalties

The Accessibility for Ontarians with Disabilities Act, 2005 gives the government the authority to set monetary penalties to enforce compliance with accessibility standards. The proposed penalties will only be used after all compliance assistance efforts have been exhausted.

Proposed amounts for these penalties range from $200 to $15,000, depending on the size and type of organization, their compliance history and the impact of the violation.

Appeals Tribunal

The Accessibility for Ontarians with Disabilities Act, 2005 calls for a tribunal to hear appeals from organizations that have been issued an enforcement action (e.g., an order to comply or a monetary penalty) that they wish to dispute.

After reviewing several tribunals, the government has selected the provincial Licence Appeal Tribunal. The Licence Appeal Tribunal has experience with similar types of appeals and is well known by the business community due to its involvement with consumer protection regulation.

The tribunal will not have the authority to hear claims by individuals who wish to make complaints about specific businesses and organizations.”

The Government made no mention of this announcement in the Minister of Community and Social Services’ May 31, 2010 speech in the legislature, marking National Access Awareness Week, to which she invited many leaders from the disability community.

2. Our Analysis of this Government Announcement Regarding the AODA’s Enforcement

Even after this announcement, we still do not know where persons with disabilities are supposed to go to let the Government know that an organization is violating an accessibility standard under the AODA, and to ask that this violation be inspected, investigated and prosecuted. We also do not know who will do inspections or audits under the AODA and when these will begin.

We do not have any information that suggests that the provincial Licence Appeal Tribunal is an appropriate body to hear and decide AODA appeals. . The tribunal that hears AODA appeals should have expertise in the wide range of barriers facing persons with disabilities, and the ways for effectively providing accessibility for persons with disabilities to employment, goods, services and facilities in the public and private sector. The Government has released no information showing that this tribunal has that needed expertise.

It is not enough to give the tribunal members training on disability and accessibility. One chooses a tribunal because of its expertise. One does not first choose the tribunal, and then try to give it the expertise it needs.

For example, labour relations issues are sent to the Labour Relations Board because its members had –re-existing expertise in labour relations.

To use the example given earlier, if a voter with a disability wanted to file a complaint against Elections Ontario under the AODA’s Customer Service Accessibility Standard because of widely-publicized barriers in the February 2010 Toronto Centre by-election, it is not clear to us that the provincial Licence Appeal Tribunal would have the proper expertise to make it appropriate to hear that case.

The maximum monetary penalty of $15,000 that the Government proposes to set is far too low. A huge organization, with ample resources, which significantly violates an AODA accessibility standard, should be susceptible to higher monetary penalties than that. If the Ontario Government violated the Customer Service Accessibility Standard, a maximum monetary penalty of $15,000 will hardly make much of a difference. Similarly, when the Toronto Transit Commission opposed David Lepofsky’s two human rights complaints which sought to require TTC to reliably announce all subway and bus stops for the benefit of blind passengers, TTC spent fully $450,000 on lawyers to oppose those human rights complaints. A maximum monetary penalty of $15,000 pales in comparison to $450,000.

It must be remembered that this is the maximum monetary penalty. Those tend to be reserved for the worst cases.

Despite this amount, if an organization does not comply with an order to comply under the AODA can be prosecuted by the Government and can face fines up to $50,000 or $100,000 per day of contravention, for that offence. Section 37 of the AODA states:

“ 37. (1) A person is guilty of an offence who,
(a) furnishes false or misleading information in an accessibility report filed with a director under this Act or otherwise provides a director with false or misleading information;
(b) fails to comply with any order made by a director or the Tribunal under this Act; or
(c) contravenes subsection 20 (8) or subsection (2). 2005, c. 11, s. 37 (1).

Same, intimidation
(2) No person shall intimidate, coerce, penalize or discriminate against another person because that person,
(a) has sought or is seeking the enforcement of this Act or of a director’s order made under this Act;
(b) has co-operated or may co-operate with inspectors; or
(c) has provided, or may provide, information in the course of an inspection or proceeding under this Act. 2005, c. 11, s. 37 (2).

Penalties
(3) Every person who is guilty of an offence under this Act is liable on conviction,
(a) to a fine of not more than $50,000 for each day or part of a day on which the offence occurs or continues to occur; or
(b) if the person is a corporation, to a fine of not more than $100,000 for each day or part of a day on which the offence occurs or continues to occur. 2005, c. 11, s. 37 (3)….”

For that higher fine to be imposed, rather than the lower monetary penalty of up to $15,000 that the Government’s May 31, 2010 announcement addresses, a chain of several steps must first occur. First, an organization must violate an AODA standard. Then, the Government must issue an order to the organization to comply with the accessibility standard. The organization can appeal that order, or any monetary penalty of up to $15,000, that the Government has imposed on it. Then the organization must disobey that order. Then the Government must successfully prosecute the organization for disobeying the order to comply.

The Government did not consult the disability community on the choice of tribunal to hear AODA cases, or on the amounts to set for the maximum monetary penalty. It is clear from the Minister’s s. 40 report on the Government’s implementation of the AODA, addressed further below, that the Government had been working on this issue in 2009. It had ample opportunity to discuss this with us, in our many contacts with the Government during that year.

Because of an important victory during the public debates over the AODA back in 2004-2005, the Government is now forced to hold a form of public consultation on this decision before it is made final. The Government must pass regulations under the AODA both to designate a tribunal or tribunals to hear AODA cases, and to set the levels of the monetary penalties under the AODA. Section 39 of the AODA gives the Cabinet (called the Lieutenant Governor in Council) the power to make regulations under the AODA. It also requires the Government to post these in draft form, and to give the public 45 days to submit their comments on the proposed regulations. Subsections (4), (5) and (6) of s. 39 of the AODA state:

“(4) The Lieutenant Governor in Council shall not make a regulation under subsection (1) unless a draft of the regulation is made available to the public for a period of at least 45 days by posting it on a government internet site and by such other means as the Minister considers advisable.

Opportunity for comments

(5) Within 45 days after a draft regulation is made available to the public in accordance with subsection (1), any person may submit comments with respect to the draft regulation to the Minister.

Changes to draft regulation

(6) After the time for comments under subsection (5) has expired, the Lieutenant Governor in Council may, without further notice, make the regulation with such changes as the Lieutenant Governor in Council considers advisable.

This requirement for public consultation was inserted in the AODA as a result of the advocacy efforts by our predecessor, the Ontarians with Disabilities Act Committee, back in 2004-2005. We have asked the Government to give us ample notice of when it will be posting its proposed regulations on the tribunal and monetary penalty for public comment, so we can let you know.

3. A critical Look at The Government’s Claim of Levels of Compliance to Date with the AODA’s Customer Service Accessibility Standard

On May 31, 2010, when the Community and Social Services Minister Madeleine Meilleur, spoke about the Accessibility for Ontarians with Disabilities Act in the Ontario Legislature, to mark National Access Awareness Week, she said: “Accessible customer service is now a requirement for our broader public sector, and 96% of Ontario's broader public sector has either reported full compliance with the standard or is in the process of reporting.” At first blush, this sounds quite impressive. However on closer inspection, it shows why an effective enforcement process is needed now.

The system that the Minister referred to in this statement involves organizations simply telling the Government if they are in compliance with the Customer Service Accessibility Standard, through an on-line self-reporting form. We do not know whether those self-reports are always accurate. There is no Government-announced program to find out if those self-reports are in fact accurate e.g. by audits or inspections.

After the 2007 Ontario election, Elections Ontario reported that 99% of its polling stations were accessibility to voters with disabilities. However, when the Chief Electoral Officer appeared before the Legislature’s Standing Committee on March 24, 2010, he admitted that Elections Ontario’s self-reports (on which that 99% figure was based) were not necessarily accurate.

Moreover, the Minister did not say that all broader public sector organizations, who must now obey the Customer Service Accessibility Standard, are in fact fully complying with it. Rather, she said that “…96% of Ontario's broader public sector has either reported full compliance with the standard or is in the process of reporting.” We do not know how many of the 96% of broader public sector organizations are in fact fully complying (according to their own self-reports) and how many are simply in the process of self-reporting. It could well be that the majority of them are merely in the process of self-reporting, and are not in fact in full compliance with the Customer Service Accessibility Standard. We emphasize that these organizations have had well over two years to meet the requirements of this accessibility standard, requirements that are not very exacting.

4. The McGuinty Government’s Longstanding Election Promise of Effective Enforcement for the AODA

In the 2003 election, Dalton McGuinty made a very important election commitment to Ontarians with disabilities. He pledged to enact a Disabilities Act that would include “effective enforcement”. His April 7, 2003 letter to David Lepofsky, then chair of the Ontarians with Disabilities Act Committee (predecessor to the AODA alliance), Mr. McGuinty wrote:

“We will introduce, with the intent of passing within one year of forming government, a strong and effective Ontarians With Disabilities Act, following fully-accessible, province-wide hearings. It will incorporate all 11 principles that were adopted by the Ontario Legislature on October 29, 1998. The legislation and regulations will include timelines, standards and a mechanism for effective enforcement, and, at a minimum, will reflect the substance of amendments to the Conservative bill offered by the Liberal party in the fall of 2001.”

One of the 11 principles Mr. McGuinty pledged that his party’s Disabilities Act would implement reads as follows:

“6. The Ontarians with Disabilities Act should provide for a prompt and effective process for enforcement. It should not simply incorporate the existing procedures for filing discrimination complaints with the Ontario Human Rights Commission, as these are too slow and cumbersome, and yield inadequate remedies;”

Those 11 principles were set out in a resolution which the Liberal Party, then in opposition, introduced into the Legislature, and which the Legislature unanimously passed on October 29, 1998. This resolution’s passage was the result of an extensive grassroots advocacy effort by Ontarians with disabilities. Those 11 principles, including the one quoted here, have served for the past 12 years as the gold standard against which any disability accessibility legislation, including the AODA and regulations enacted under it, are measured. You can see that resolution, including the 11 principles, at:
http://www.odacommittee.net/oct-resolution.html

From 2001 to 2003, the McGuinty Liberals repeatedly and resoundingly criticized the previous Government’s Ontarians with Disabilities Act 2001, among other things, because it lacked effective enforcement.

5. The Situation on the Eve of May 31, 2010 Regarding the AODA’s Enforcement

Fully five years after the AODA’s enactment, almost three years after the first accessibility standard was enacted (the Customer Service Accessibility Standard), and some five months after it became enforceable against the Ontario Government itself and broader public sector organizations, the Government had still not established and made public the promised regime for the effective enforcement of the AODA.

The AODA imposes on the Ontario Government a series of important duties to provide for the effective enforcement of this legislation. The Government is required to appoint inspectors (s. 18) “within a reasonable time after the first accessibility standard is established …”. It is also required to designate a tribunal or tribunals by regulation to hear appeals under this legislation within a reasonable time after the first accessibility standard is established. (s. 26(1))

When May 31, 2010 began, the Government had not done any of this, as far as we could ascertain. Yet more than a “reasonable time” had passed since the first accessibility standard was established. The Customer Service Accessibility Standard was enacted in 2007. It became enforceable against the broader public sector on January 1, 2010. Yet when it came into force and was enforceable on that date, well over two years after it was established there was no one publicly designated to investigate, prosecute or adjudicate cases under the AODA. There was nowhere to go to lodge a complaint if one felt that a public sector organization was violating the Customer Service Accessibility Standard.

To again use the example mentioned above, a person could well want to ask the Government to investigate Elections Ontario for denying effective customer service under that accessibility standard when it operated inaccessible polling stations, during the February 4, 2010 Toronto Centre by-election. He or she had no where to go to get the Customer Service Accessibility Standard enforced. It is no answer to say that a voter with a disability could file a complaint under the Ontario Human Rights code. As shown above, the Government had promised an effective enforcement process that did not just require one to file an individual human rights complaint.

We had made it clear to the Government over and over that we want it to keep its promise of effective enforcement. We had also made it clear that we want input into the way the legislation will be enforced. For example, almost a year ago, we wrote the Minister of Community and Social Services on July 23, 2009, in preparation for the Charles Beer Independent Review of the AODA, to ask what is planned for the enforcement of the AODA. In her August 13, 2009 response to this inquiry, the Minister wrote the following (which summarizes our inquiry and provides her answer):

“1. What decisions has the Government made on how the AODA 2005 and accessibility standards enacted under it will be enforced? We understand that the Ministry has been working on a compliance framework, to set out how the Government will be enforcing the AODA 2005 and accessibility standards enacted under it. Has that compliance framework been finalized? May we receive a copy of it or any other documents setting out the Government's plans for the AODA's enforcement, including any complaints mechanism? If it has not been finalized, when does the Government plan to finalize it? May we receive a draft of it, if it is not finalized?

The compliance and enforcement approach has been developed to evolve with new regulations enacted under the AODA. Development of compliance and enforcement measures will involve risk assessments in order to prioritize compliance and will encourage close cooperation with organizations to support them meeting the requirements of the standards. We will also support compliance by encouraging organizations to exceed the minimum requirements of standards and to establish industry/sector leadership.

Further information regarding the Accessibility Directorate of Ontario's (ADO ) approach to compliance is currently under development and will be communicated to stakeholders when finalized.

2. Has a tribunal been designated under section 26 of the AODA 2005 to hear AODA appeals? If not, when will the tribunal be designated? What opportunity will the disability community have for input into the choice of the tribunal to be designated?

The ADO will be finalizing a recommendation for designating a tribunal in 2010. The designated tribunal will be available to respond to appeals against any enforcement action related to non-compliance with the AODA. In considering a tribunal to hear appeals under the AODA, the ADO is assessing the legislative requirements and anticipated enforcement activity. The ADO will not be hosting formal consultations on the tribunal, but would be pleased to hear the views of the disability community.”

This letter is available at:
http://www.aodaalliance.org/strong-effective-aoda/11122009.asp

We had the opportunity to review a draft enforcement/compliance "framework” that the Government was considering back in 2008. However, we only received very limited information on progress since then. Earlier this year, Government officials showed us the compliance system that the Government had adopted. Organizations can file on-line self-reports on whether they believe they are in compliance with the Customer Service Accessibility Standard. Prior to May 31, 2010 we were not meaningfully consulted on the method the Government was considering for enforcement in the case of organizations which are not complying with AODA accessibility standards , including which tribunal or tribunals will hear cases under the AODA.

The requirement in the AODA that the inspectors and tribunal be appointed within a reasonable time after establishment of an accessibility standard was included on the urging of the ODA Committee, our predecessor. The ODA Committee voiced a concern that it didn’t want years to go by, without the Government taking the required steps to implement the AODA’s enforcement machinery. We now know that those concerns were well-founded.

Between the time the Government enacted the AODA back in 2005, and the Government’s May 31,2010 announcement regarding the AODA’s enforcement, there also had been a major event in 2006 that bore on the Government’s AODA commitments regarding effective enforcement. When the McGuinty Government was developing the AODA between 2003 and 2005, it asked the disability community, including the ODA Committee, what form the effective enforcement mechanism should take. Leading this campaign, the ODA Committee, the AODA Alliance’s predecessor, called on the Government to establish a new, independent enforcement agency, to be arms length from the Government, with the mandate to enforce the AODA.

In 2005, the government included some enforcement provisions in the AODA. These did not include an independent, arms length enforcement agency. The government told the ODA Committee it would not establish a new independent enforcement agency. However, the Government also said that the disability community would continue to have access to the Ontario Human Rights Commission, a public law enforcement agency that investigated and prosecuted discrimination cases, to publicly investigate and prosecute when individuals with disabilities faced discriminatory barriers.

In 2005, many in the disability community, with the ODA Committee in the lead, commended the enactment of the AODA 2005, even though it did not include an independent enforcement agency. It was a compromise. In so doing, the disability community relied on the government's representations about our continued access to the Ontario Human Rights Commission to publicly investigate and publicly prosecute individual disability discrimination cases.

Flying in the face of this understanding between us and the McGuinty Government, in 2006, just months after the AODA was passed to a standing ovation in the Legislature, the McGuinty Government announced its intention to amend the Ontario Human Rights Code to privatize the enforcement of human rights in Ontario. It did not consult with the disability community in advance of this decision. Before the AODA 2005 was passed, the Government had not given the broad disability community any indication that such a dramatic change to human rights enforcement was being planned.

In 2006, the AODA Alliance, and others from within the disability community and elsewhere, voiced strong opposition to the Government’s plans regarding the Human Rights Commission. In 2006, the McGuinty Government passed Bill 107 over our strong objection. Bill 107 removed from the Human Rights Commission its mandate to investigate, mediate, and where evidence warrants, publicly prosecute individual discrimination claims. This included claims of discrimination because of disability.

Before Bill 107, if a person with a disability was the victim of discrimination, he or she had the right under the Human Rights Code to have the Human Rights Commission publicly investigate the case, if the complaint wasn’t trivial or vexatious. He or she also had the right to have their case publicly prosecuted if the Human Rights Commission decided that the evidence warranted this, and if the case didn’t settle by a voluntary agreement.

Bill 107, passed in 2006, took away the right of discrimination victims to a public investigation and where appropriate, public prosecution of their individual discrimination cases. Under Bill 107, it is left to the individual discrimination victim to investigate their own case, and to prosecute it themselves before the Human Rights Tribunal. Among our objections was a deep concern that this legislation flew in the face of the McGuinty Government's commitments and understanding reached with the disability community regarding the AODA’s enforcement, described above. These events are documented extensively at:
http://www.aodaalliance.org/reform/default.asp

In 2006, in response to many objections to Bill 107, the McGuinty government committed that it would provide free independent legal counsel to all discrimination victims appearing before the Human Rights Tribunal. For government statements making this commitment, see:
http://www.aodaalliance.org/reform/update-081806.asp

Despite this, Bill 107 does not ensure full legal representation to all discrimination victims. It requires the Government to set up a new legal clinic, the Human Rights Legal Support Centre, which can provide legal services to discrimination victims as it wishes. That organization can and does turn away any discrimination victim if it chooses. That Legal Support Centre receives less than half of the funding which the then-severely backlogged Ontario Human Rights Commission used to receive.

According to information from the Human Rights Tribunal, as of February 2009 fully 80% of applicants who bring discrimination cases before the Human Rights Tribunal under Bill 107’s new regime were unrepresented by any legal counsel at that time. Moreover, April 2010 reports in the Toronto Star document that fully 57% of the people who call the Human rights Legal Support Centre for legal representation do not even get their call answered. See:
http://www.aodaalliance.org/strong-effective-aoda/05292010.asp

This is a far cry from the promised, assured free, independent legal counsel for all discrimination victims.

6. What the Report of the Charles Beer Independent Review of the AODA Told the McGuinty Government in February 2010 Regarding the AODA’s Enforcement

The Government-appointed Charles Beer Independent Review of the AODA felt that the issue of the AODA’s enforcement was outside its mandate . We disagreed with that view. Nevertheless, the Beer Report commented on the Government’s failure as of February 2010 to establish the AODA’s enforcement mechanism. It states:

* “During the consultations, much interest was expressed in the compliance and enforcement procedures the government will put in place to implement the standards. Stakeholders in both the obligated sectors and the disability community were surprised that the compliance and enforcement framework had not yet been released given the January 1, 2010 effective date for the customer service standard for the provincial government and broader public sector.

CHS strongly endorses the need for establishing strong, enforceable, and effective regulations under the AODA. We also strongly endorse developing effective enforcement, quality assurance, and resource development provisions to properly support the enforcement of those regulations.

Written Brief, The Canadian Hearing Society (CHS)

The AODA Alliance called for an independent, arm’s-length enforcement agency, as well as a new, independent tribunal to hear appeals.

Many wonder if the government will emphasize education and support, or take a more punitive approach. People seek answers to such questions as how often accessibility reports will be required, what they will contain, who will review them, what the follow-up will be, who will do inspections and under what circumstances, and which tribunal will hold hearings. While outside the scope of the review, these issues were frequently raised during the consultations.”

You can read the Beer Report at:
http://www.aodaalliance.org/strong-effective-aoda/05312010.asp

You can read the AODA Alliance’s analysis of the Beer Report at:
http://www.aodaalliance.org/strong-effective-aoda/06032010.asp

7. What the Government Said it had Done Regarding the AODA’s Enforcement in its 2009 Section 40 Annual Report

Section 40 of the AODA requires the Minister of Community and Social Services to each year make public a report on progress in the previous year in implementing the AODA. On May 31, 2010, the same day that the Government made the Beer Independent Review of the AODA public, the Government also released the Minister’s annual s. 40 report for 2009. In her covering letter, accompanying that s. 40 report, the Minister said the following regarding the AODA’s enforcement:

“During this past year we took notable strides forward and laid some important groundwork in the areas of standards development and compliance assistance.

In order to support the hundreds of thousands of organizations that will be affected by these standards, we developed and launched the Accessibility Compliance Reporting System in Fall 2009. The system allows those businesses and organizations that must submit regular reports on their compliance with the standards to manage their information and complete, certify and submit their reports in one easy place and entirely online.”

In the Minister’s actual s. 40 report for 2009, released at the same time as that letter, she said the following about the AODA’s enforcement:

* “Making Compliance Easier

In 2008 the government developed a compliance assurance framework for the AODA to help organizations ensure that they are fulfilling all of the relevant requirements of each of the standards as they come into effect.

The framework included:

In 2009, the Accessibility Directorate built on that compliance assurance framework by:

* “Looking Ahead to 2010

We made an enormous amount of progress in 2009, not only with standard development, but with shifting the public perception of the need for improved accessibility and its benefits for us all. As we move into 2010, that momentum will continue….
(among a list of other areas of planned action)

… Supporting Compliance


ONTARIO GOVERNMENT MAY 31 2010 NEWS RELEASE AND BACKGROUNDER

McGuinty Government Breaking Down Barriers While Supporting Business

Ontario is celebrating National Access Awareness Week and marking the fifth anniversary of the province's groundbreaking Accessibility for Ontarians with Disabilities Act, 2005.

The first standard to be implemented under the act - for accessible customer service - is already in place for the broader public sector. By January 1, 2012, Ontario businesses will also have to meet the standard.

The province is currently developing four more accessibility standards: for information and communications, employment, transportation, and the built environment. The first three of these standards will be integrated into a single regulation, making them more flexible for businesses. It also responds to a key recommendation in Charles Beer's review of the Act, which was released today.

People with disabilities regularly face barriers that prevent them from working, traveling in and enjoying their communities. Seniors also experience barriers to activities as part of the natural aging process. Ontario's accessibility standards will break down these barriers so that people of all ages and abilities can more easily live, work and travel throughout the province.

Making the province accessible by 2025 will help Ontario tap into the economic power of thousands of customers and visitors with disabilities and harness a larger, more diverse labour pool. It supports the Open Ontario Plan to create new opportunities for jobs and growth.

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Ontario's Accessibility Plan

May 31, 2010 1:00 PM

The Accessibility for Ontarians with Disabilities Act, 2005 (AODA) is about to celebrate its fifth anniversary. The act is the foundation of the government's plan to make Ontario accessible for people with disabilities by 2025.

Under the act, Ontario is creating standards that will break down barriers for people with disabilities in five areas of everyday life. The Customer Service Standard is already in place for the broader public sector, and the private sector will follow by January 1, 2012. The next three proposed accessibility standards cover Information and Communications, Employment and Transportation.

In order to effectively enforce these new standards, the government is developing a system of monetary penalties to be used in cases of non-compliance, as well as an appeals tribunal.

Information and Communications

The proposed Accessible Information and Communications Standard outlines how business and organizations will be required to create, provide and receive information and communications in ways that are accessible for people with disabilities.

Employment

The proposed Employment Accessibility Standard will require organizations that provide paid employment to ensure accessibility for people with disabilities across all stages of the employment life cycle including recruitment, retention and returning to work.

Transportation

The proposed Accessible Transportation Standard will make it easier for people to travel in Ontario, including people with disabilities, older Ontarians and families traveling with children in strollers.

Making the Standards Easier to Implement

In response to public feedback from the standards review process, Ontario will integrate these next three standards into one streamlined regulation. This was also one of the recommendations made by Charles Beer in his independent review of the AODA.

The integrated accessibility regulation, if passed, will make the standards easier to understand and implement. It will offer greater flexibility and reduce both costs and regulatory burden, all in keeping with the government's Open for Business initiative.

When the Accessible Built Environment Standard is finalized and when the Customer Service Standard comes up for review in 2013, the government will consider how best to streamline those as well.

Timelines

Private organizations will still be expected to meet the customer service standard requirements by January 1, 2012.

Requirements for the next four standards will be phased in to give organizations time to plan. Deadlines will depend on the size and nature of the organization.

The province will develop free tools and educational materials in advance of compliance deadlines to help organizations meet their requirements, and the Ontario Public Service will be the first organization required to implement the standards.

Monetary Penalties

The Accessibility for Ontarians with Disabilities Act, 2005 gives the government the authority to set monetary penalties to enforce compliance with accessibility standards. The proposed penalties will only be used after all compliance assistance efforts have been exhausted.

Proposed amounts for these penalties range from $200 to $15,000, depending on the size and type of organization, their compliance history and the impact of the violation.

Appeals Tribunal

The Accessibility for Ontarians with Disabilities Act, 2005 calls for a tribunal to hear appeals from organizations that have been issued an enforcement action (e.g., an order to comply or a monetary penalty) that they wish to dispute.

After reviewing several tribunals, the government has selected the provincial Licence Appeal Tribunal. The Licence Appeal Tribunal has experience with similar types of appeals and is well known by the business community due to its involvement with consumer protection regulation.

The tribunal will not have the authority to hear claims by individuals who wish to make complaints about specific businesses and organizations.

Ministry of Community and Social Services
ontario.ca/community