While the fines for non-compliance are huge (up to $100,000 per day – see section 83 of AODA Reg 191/11), the regime relies on the Ministry of Community and Social Services (the “Ministry”) to identify, initiate and enforce compliance, as there is no mechanism within the AODA regime for an individual to initiate an AODA complaint against one’s employer or an organization. In other words, an organization would have to somehow get on the government’s radar in the first place.
So how does an individual seek to enforce the standards for disability accessibility set out in AODA? Last fall, I was told by a representative at the Ministry that there is no gap as individuals can take their complaint to the Human Rights Tribunal of Ontario (“HRTO”). He further explained that the purpose of the AODA regime was to focus on compliance, not punishment, and that the Ministry will respond to patterns of a large number of complaints, but not necessarily individual, one-off complaints.
The HRTO’s “does not enforce the AODA”
Since AODA began applying to the public sector in 2010, we have seen about a half dozen HRTO cases involving both public and private organizations that refer to AODA as a floor or minimum standard of accessibility requirements an organization must meet.
However, in Bishop v. Hamilton Entertainment and Convention Facilities Inc., one of the few HRTO cases that have considered AODA this year, the HRTO declined to reference the AODA standards and concluded the following:
The Tribunal does not enforce the AODA. There is a statutory framework for Director’s orders and administrative penalties set out in the AODA at sections 21 to 25.”
As a classic example of weak facts impacting the law, in the Bishop case, the applicant was unable to establish any discrimination based on disability. The applicant claimed that the manner in which the respondent company was attempting to enforce a debt against the applicant’s non-profit organization was discriminatory. He, in part, relied on AODA’s Customer Service Standard to argue that the company did not provide services in accordance with the standards outlined in AODA.
Ultimately, the HRTO held that based on the facts in this case, there was no link between the debt enforcement and his disability, and it dismissed the matter.
Is there a gap for individual disability rights?
In dismissing the matter, the adjudicator in Bishop concluded that the HRTO “does not enforce AODA”. This makes sense from a statutory perspective – the Tribunal is not referenced in the AODA legislation, and it is the Ministry of Community and Social Services that enforces the AODA regime as against organizations.
However, the Tribunal remains the “enforcer” of human rights standards for individuals in Ontario. The AODA legislation expressly states that in the event of any conflict between the AODA standards and the Human Rights Code, the higher standard will trump. Allegations of discrimination on the basis of disability remain squarely within the reach of the Tribunal.
What remains unsettled, is the extent to which the AODA standards will be referenced as the minimum standards required to be met to avoid a discrimination claim. Many had thought the AODA standards would become a kind of checklist or enumerated criteria that an organization must meet, something we began to see in the HRTO cases, Wozenilek v 7-Eleven and Polangio v Cochrane.
This would promote an objective component to the human rights regime that would no doubt be encouraged by disability advocates, and would frankly provide some clarity for organizations regarding accommodation, accessibility and how to avoid a discrimination claim.
Competing or Complementing Administrative Regimes?
The Bishop case is a relatively short, succinct decision without any detailed analysis on AODA. I hesitate to jump to any conclusions based on this one case, but I am certainly curious what sort of discussion is happening behind the scenes at the HRTO.
Is the HRTO prepared to absorb the AODA standards and become the “enforcer” of the standards for individuals? While the standards will not tie the hands of the HRTO, is there a reluctance to be the high profile interpreter of the standards? To what extent will the Ministry of Community and Social Services look to the HRTO for guidance on interpreting its own standards?
It will be interesting to see how the caselaw develops given the distinctly different mandates of the two respective administrative bodies.
In the meanwhile, given the huge fines for non-compliance, employers are best off to continue to work towards AODA compliance, while being prepared for individuals to use the AODA standards as, at the least, a reference point in individual discrimination claims at the HRTO.
For more info on AODA, here are some of my past blog posts: