This is Part 3 of my three part series on the Accessibility for Ontarians with a Disability Act, 2005. In the first post, I discussed the Customer Service Standard and in the second post, I outlined the Integrated Accessibility Standards. Both standards are regulations under AODA and set out further detail on the requirements of businesses and workplaces to become accessible for individuals with a disability.
AODA Penalties for Non-Compliance
What are the penalties for failing to comply with AODA? While AODA lays out the basic framework for how the compliance mechanism will be set up, the details are in the Integrated Accessibility Standard. The compliance provisions expressly apply to both the Customer Service Standard and the Integrated Accessibility Standard.
In short, organizations can face fines of a daily penalty up to a maximum of $100,000 against the corporation and $50,000 against an individual, in addition to other non-monetary remedial penalties permitted by AODA.
Under AODA, inspectors have the authority to carry out an inspection by entering a business without a warrant, and may require production of documents or data, and/or interview any person present in the business on matters relevant to the inspection.
Where’s the Teeth?
AODA’s objective is to encourage corporate compliance. There is no individual complaint mechanism set out in AODA, and the Ministry will not be pursuing individual complaints about an AODA violation. The Ministry may, however, look into patterns of complaints about certain organizations, but again, with a view to the organization complying, rather than a focus on prosecution.
Where we will see all the action for individual complaints – and for the respondent employers – is at the Human Rights Tribunal of Ontario. For anyone with an individual complaint about his or her ability to access particular goods or service in Ontario, he or she can file a discrimination claim at the Tribunal.
AODA specifically provides that any law (e.g. the Human Rights Code) that imposes a higher level of accessibility shall prevail, and the Human Rights Tribunal continues to issue awards upholding the paramountcy of the Human Rights Code.
Because the AODA standards came into effect for the public sector in 2010, we are already seeing cases come out of the Tribunal that cite AODA and its regulations as the minimum accessibility standards that organizations should meet.
Human Rights Tribunal Case Law
For example, in Palangio v Cochrane (Town), the employer was ordered to pay $10,000 to a town counselor because of the manner in which the council addressed (or initially, failed to address) his requests to record the council meetings due to his low hearing. In that case, the fellow council members suspected he was leaking details to the media and refused his request. Among other things, the Tribunal held that the town of Cochrane failed to train its employees on how to deal with AODA complaints.
As with so many discrimination cases, the process and method of communicating with individual complainants remain key issues that trigger awards. For example, in Wozenilek v. 7-Eleven Canada Inc., the Tribunal awarded an individual who uses a wheelchair $6,000 because his local Seven-7 convenience store dilly-dallied in installing an automatic door device. The Tribunal specifically cited the AODA standards and held that while the Customer Service Standard didn’t kick in for private sector businesses until January 1, 2012, Seven-7 knew it was coming down the pipe, has the deep pockets to install a relatively inexpensive device, and was contemplating doing so anyway. It was the failure to respond to the individual in a timely, effective manner that likely tipped the balance the most.
Take-Away for Employers
While the AODA feel-good compliance framework may not sound very threatening, employers must be aware of the likely increase of discrimination claims at the Human Rights Tribunal. It may prove to be a better use of resources to comply up-front, rather than waiting for an individual to complain about their inability access your goods or services, or for an employee to file a claim for discrimination in the workplace.
Disclaimer: This material is being kept online for historical purposes. Though accurate at the time of publication, it is no longer being updated. The page may contain broken links or outdated information.