Friday, September 23, 2011

Canada: Province of Ontario Creates New Accessibility Standards for Disabled Persons

By Trevor Lawson and Kate McNeill-Keller, McCarthy Tétrault LLP, Toronto, Ontario, Canada


The Accessibility for Ontarians with Disabilities Act, 2005 (the “AODA”) is the most recent, and the most far reaching, accessibility legislation to be introduced in Ontario. The first legislation of its kind in Canada, the AODA creates significant obligations for public and private sector organizations in Ontario with respect to accessibility for disabled persons. The stated goal of the AODA is the development of standards in order to achieve accessibility for all disabled Ontarians by 2025.

While the AODA became law in 2005, businesses in Ontario are only beginning to grapple with the obligations imposed by the AODA due to its delayed compliance timelines and the long process mandated by the AODA for the creation of Accessibility Standards. The Accessibility Standards for Customer Service (the “Customer Service Standard”) was the first Accessibility Standard to become law, in 2008.

The AODA will soon become of particular importance to employers in Ontario, as the “Integrated Accessibility Standard, which applies in part to accessibility standards in employment (the “Integrated Accessibility Standard”) became law in June, 2011.

The following is an overview of the key elements of the AODA, as well as information relating to the various Accessibility Standards and the administrative scheme mandated by the AODA.

AODA Accessibility Standards

The AODA is one of several pieces of legislation in Ontario which establish requirements for accommodating disabled persons. Where there is a direct conflict between the AODA and another specific legislative or regulatory requirement regarding accessibility, the AODA provides that the higher level of accommodation will govern. The AODA seeks to gradually improve accessibility for disabled persons through the implementation of the following five “Accessibility Standards”:

  • Built Environment

  • Employment

  • Transportation

  • Information and Communication

  • Customer Service

Under the Ontario Human Rights Code, organizations already have a “duty to accommodate to the point of undue hardship” employees with disabilities and other disabled persons in relation to the provision of goods and services. However, the AODA’s Accessibility Standards will provide for more specific obligations and require organizations to take a more proactive role in accommodating disabled persons.

Process for the Creation of Accessibility Standards

The AODA sets as one of its purposes “the involvement of persons with disabilities, of the Government of Ontario and of representatives of industries and of various sectors of the economy in the development of the accessibility standard”. To that end, the AODA provides for the creation of accessibility standards through a complex consultation process. At the outset, this process requires the establishment of a standards development committee which may include a wide variety of persons, such as:

  • persons with disabilities or their representatives

  • representatives of the industries, sectors of economy or classes of persons or organizations to which the accessibility standard is intended to apply

  • representatives of ministries that have responsibilities relating to the industries, sectors of the economy or class of persons or organizations to which the accessibility standard is intended to apply

  • such other persons or organizations as the Minister considers advisable.

Once the Committee is established, the Minister is required to provide the Committee with terms of reference and make those terms of reference available to the public. Organizations and individuals are then invited to comment on the Accessibility Standard at various stages of its development.

The intended result of this Committee process is the establishment of a proposed Accessibility Standard. The proposed Accessibility Standard is then made available for a period of 45 days for public comment on a government internet site ( After receiving public comment on the proposed Accessibility Standard, it is submitted to the Minister for comment. Within 90 days of receiving the proposed Accessibility Standard, the Minister decides whether to recommend that it be adopted as a regulation in whole, in part or with modifications.

Customer Service Standard

The Customer Service Standard was filed as a regulation on July 27, 2007 and came into force on January 1, 2008. However, organizations have been provided with a significant amount of time to comply with the Customer Service Standard. Designated public sector organizations had until January 1, 2010 to comply with the Customer Service Standard while private sector providers of goods or services have until January 1, 2012 to comply.

Under the Customer Service Standard, organizations in Ontario are required to:

  • establish policies, practices and procedures governing the provision of goods or services to persons with disabilities, including provisions for assistive devices

  • ensure that service animals and support persons are not denied entry to an organization’s facility if the public and/or third parties have access to the premises

  • provide notice of temporary disruptions in services usually used by those with disabilities

  • ensure that persons involved with providing services to members of the public or other third parties receive training on:
    (1) how to interact and communicate with persons with various types of disabilities
    (2) how to use equipment or devices available on the provider’s premises that may help a person with a disability
    (3) what to do if a person with a particular type of disability is having difficulty accessing the provider’s goods or services
    provide ongoing training in connection with any changes to the organization’s policies, practices and procedures

  • establish a process for receiving and responding to feedback (and complaints) about the manner in which an organization provides goods or services to those with disabilities

In addition, all public sector organizations, and private sector organizations with at least 20 employees in Ontario, are required to:

  • prepare documents outlining its policies, practices and procedures

  • file accessibility reports with the Ministry

  • provide, upon request, copies of such documents to any person in a format that takes into account the individual’s specific disability

Integrated Accessibility Standard
On May 31, 2010, the Ontario government announced the development of an “Integrated Accessibility Standard” which integrates the proposed “Employment Standard”, “Information and Communications Standard” and “Transportation Standard” into one streamlined regulation. The Integrated Accessibility Standard was filed and came into force as a regulation on June 3, 2011.

(a) The Information and Communications Standard
The Information and Communications Standard set out at Part II of the Integrated Accessibility Standard sets out obligations with respect to the following, with staggered compliance deadlines for large, non-public sector organizations (i.e. private sector organizations with 50+ employees in Ontario) noted as well:

  • Ensuring that processes for receiving and responding to feedback are provided via accessible formats and communications supports, upon request (compliance deadline – January 1, 2015)

  • Providing accessible formats and communication supports in a timely manner, taking into account the individual’s accessibility needs, at a cost no more than the regular cost charged to other persons, if any (compliance deadline – January 1, 2016)

  • If the organization has emergency procedures, plans or public safety information that it makes available to the public, such information must be provided in an accessible format or with appropriate communication supports, upon request (compliance deadline – January 1, 2012)

  • Ensuring that internet websites and web content confirm with World Wide Web Consortium Web Content Accessibility Guidelines (compliance deadline – staggered, commencing with first phase on January 1, 2014 and second phase by January 1, 2021)

(b) The Employment Standard

The Employment Standard set out in Part III of the Integrated Accessibility Standard will likely have the largest impact on employers’ obligations in terms of both administrative resources and cost. The stated goal of the Employment Standard is to create equal employment opportunities for people with disabilities by removing barriers to employment. Private sector employers carrying on business in Ontario should anticipate implementing compliance over the next five years, with the bulk of requirements coming into force on January 1, 2016 for employers with more than 50 employees and on January 1, 2017 for employers with less than 50 employees.

The Employment Standard will apply to the recruiting, hiring and retaining of paid employees, including full time, part time, or apprenticeships. However, it will not apply to unpaid employees, volunteers, or persons on co-op or high school work experience placements. The Employment Standard will require organizations to:

  • Provide training on the requirements of the accessibility standards to employees and, for employers with 50 or more employees, create a document describing the training policies

  • Establish, maintain and implement policies governing the implementation of the accessibility standards. The policies must include a description of how the organization will meet the standards as well as a statement of commitment for meeting the needs of persons with disabilities. As noted above, for employers with more than 50 employees, a separate document will have to be prepared describing the policy, which is available to any person upon request (and in a format that meets the person’s needs)

  • Accommodate persons with disabilities in the recruitment process by, for example, notifying applicants that accommodations will be provided to enable their participation in the recruitment process and also notifying selected applicants that any assessment and selection materials and processes used will be available in an accessible format upon request

  • Develop individual accommodation plans for employees with disabilities, upon request. The plans must assess and accommodate employees on an individual basis, identify the accommodation to be provided, include timelines for the provision of accommodations, and include individualized workplace emergency information. This would only apply to public organizations and private sector employers with 50+ employees

  • Provide electronic information in a new format if working with electronic information is necessary to perform the job

  • Deliver individualized workplace emergency information to employees with disabilities

  • Take into account the accommodation needs of employees with disabilities in existing performance management, career development and redeployment processes

  • Develop procedures that include individual accommodation plans where appropriate for employees returning to work from injury or illness

Employers with 50 or more employees will also have to file annual accessibility compliance reports with the Ministry for review and approval.

(c) The Transportation Standard

The Transportation Standard set out at Part IV of the Integrated Accessibility Standard is an industry-specific standard which sets out obligations that will apply to conventional and specialized transportation service providers, municipalities and taxicab providers. Given that this standard will not apply to most private sector employers, we have not summarized the requirements of the Transportation Standard in this article.

Part V of the Integrated Accessibility Standard sets out the proposed compliance structure which will apply both to the Integrated Accessibility Standard and the Customer Service Standard. It establishes:

  • the amounts of administrative penalties (max. $100,000 in the case of a corporation and $50,000 in the case of an individual or unincorporated organization) and the process by which they should be determined

  • the process by which a review of an order may be made

  • the payment schedule for administrative penalties

  • the designation of the License Appeal Tribunal as the tribunal to hear matters arising under the AODA

The Accessible Built Environment Standard

The Accessible Built Environment Standard was available for public comment between July 14, 2009 and October 16, 2009. The final proposed Standard has now been submitted to the Minister of Community and Social Services who is considering what aspects of the proposed Standard will become law and when. The terms of reference provided to the Committee for the creation of this standard provided for a focus on preventing barriers on a go-forward basis. As such, new buildings and buildings undergoing major renovations will need to meet the requirements of this proposed Standard, but it does not appear that existing buildings will need to be modified to comply with this Standard.

Administrative Scheme

As noted above, the AODA’s administrative scheme is really only beginning to take effect, as the specific administrative procedures mandated by the AODA have not yet been fully put into place. However, the AODA does provide for specific administrative and reporting structures including requirements related to the inspection of an organization’s premises, the making of orders by a director and the hearing of appeals related to the AODA.

Next Steps for Organizations in Ontario

The obligations created by the AODA are significant and will likely require additional HR staffing and resources in order for an organization to become and remain compliant with the AODA. Organizations in Ontario are well advised to become familiar with the AODA and their obligations thereunder. A “compliance team” should be assembled or a point person identified before January 1, 2012 in order to guide the organization towards compliance with the AODA. Existing policies should be reviewed, and new policies and procedures addressing requirements under the AODA should be created. Employee training programs may need to be revised (especially for those employees who deal with customers), as well as any third-party contracts that raise potential compliance issues.

Although the AODA represents the first legislation of its kind in Canada, other Provinces appear set to follow Ontario’s lead. In June, 2011, the Minister of Labour for the Province of Manitoba appointed a Council to look at issues of accessibility in Manitoba. The Council will hold meetings over the next year and write a final report (due in June, 2012) which is expected to be the basis for accessibility legislation to be introduced in that Province some time later in 2012.