Many separate accessibility standards development processes exist in Canada. Ontario, Manitoba, and Nova Scotia all have laws that mandate creation of provincial accessibility standards. In addition, the Accessible Canada Act mandates accessibility standards that apply to organizations under federal jurisdiction. However, the government of Canada intends to coordinate federal and provincial accessibility laws. Moreover, the third review of the AODA recommends that the Ontario government should support this aim by aligning its accessibility law, the AODA, with the laws of other provinces and the country. If the governments work together to make these laws more similar, the AODA standards development process may change to align with laws in other places across the country. In this article, we explore accessibility compliance appeals across Canada.
Accessibility Compliance Appeals Across Canada
Ontario
In Ontario, tribunals judge appeals that organizations make after they have received orders to comply with AODA standards. The Lieutenant Governor appoints AODA tribunals and specifies the types of appeals each tribunal can judge. In addition, the Lieutenant Governor can give tribunals other tasks or duties.
Organizations have fifteen (15) days after receiving an order to file an appeal. However, the tribunal can extend this time limit to accommodate someone with a disability, or for any other reason. Organizations must pay a filing fee.
During the appeal process, organizations are not required to comply with the order they are appealing.
People or organizations involved in an appeal to a tribunal include:
- The organization appealing an order
- The director who gave the order being appealed
- Any other person or organization the Tribunal believes necessary for the appeal hearing
Moreover, appeal hearings most often take place in writing. Nonetheless, organizations can request to make their appeals in person. In some cases, the full tribunal hears appeals. In others, the chair of a tribunal can appoint a panel to oversee a hearing.
Orders of Tribunals
After a hearing, a tribunal makes a decision about whether the organization must obey the director’s order. For instance, the tribunal may:
- Confirm the director’s order
- Rescind the director’s order
- Vary the director’s order
In other words, the tribunal may require the organization to comply with the director’s order. In contrast, the tribunal may remove the order. Alternatively, the tribunal may make changes to the order and require the organization to comply with the revised version.
Mediation
AODA tribunals may try to settle part or all of an appeal through mediation. The organization and director involved in the appeal must agree to the mediation. In addition, the tribunal must believe that mediation would be in the public interest. However, the AODA gives no further details about the mediation process, such as how tribunals proceed if mediation does not resolve an appeal.
Manitoba and Nova Scotia
In Manitoba and Nova Scotia, organizations also have the option of appealing directors’ orders. However, organizations appeal directly to a court, instead of to a tribunal. Nonetheless, many of the same rules of Ontario tribunal appeals also apply under other provincial accessibility laws. For example, the organization and director both take part in appeals. Likewise, organizations are not required to comply with orders that they are in the process of appealing. In addition, provincial courts can confirm, rescind, or vary orders.
However, directors and ministers in the other provinces have more power to enforce orders and the outcomes of appeals. For instance, in Manitoba, directors can publish reports that list the names of organizations that have received orders or penalties. Similarly, in Nova Scotia, the Minister in charge of the Act has the same power to publicize the names of non-compliant organizations. In the third review of the AODA, the Honourable David Onley recommends that Ontario should follow this example, to better enforce the AODA.
Accessible Canada Act
The Accessible Canada Act outlines a similar appeal process. After reviewing and confirming a compliance order, the Accessibility Commissioner may send a warning to organizations that continue not to comply. These organizations can request another review to appeal the finding of non-compliance or the penalty the Accessibility Commissioner has given them. Alternatively, an organization can enter into a compliance agreement with the Accessibility Commissioner. This agreement, like an incentive agreement, allows the organization to work toward compliance, instead of paying a penalty.
As governments work together to align their accessibility laws, some AODA mandates may change so that law in Ontario corresponds more closely with laws in other provinces, or with the Accessible Canada Act. For instance, AODA appeals could one day take place in court, instead of in front of tribunals. Alternatively, Ontario organizations that violate the AODA could enter into compliance agreements, instead of attempting to settle appeals through mediation.