Will the McGuinty Government Keep Its Election Promise of Effective Enforcement for the AODA?

June 15, 2010

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

* What the McGuinty Government announced on May 31, 2010 re the AODA’s
enforcement
* Our analysis of this Government announcement regarding the AODA’s
enforcement
* A critical look at The Government’s claim of public sector levels of
compliance to date with the AODA’s Customer Service Accessibility Standard
* Details of the McGuinty Government’s longstanding Election promise of
Effective enforcement for the AODA
* The situation on the Eve of May 31, 2010
* What the Report of the Charles Beer Independent Review of the AODA told
the McGuinty Government in February 2010 regarding the AODA’s Enforcement
*What the Government said it had Done Regarding the AODA’s Enforcement in
its 2009 Section 40 Annual Minister’s Report

Send us your feedback. Write us at: aodafeedback@gmail.com

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:
  https://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:
https://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:
https://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.servicecanada.gc.ca/
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.”
- * “Extensive work has also been undertaken internally to develop the
  enforcement and compliance mechanisms that will be required.”
- * “In addition, the ADO (i.e. the Accessibility Directorate of Ontario)
  should implement a strategy to facilitate and encourage partnerships to
  support the obligated sectors in working to meet the 2025 goal set by the
  legislation. This would include:.
  .. Development, communication and implementation of a compliance and
  enforcement framework.”
- * “The government has not announced the compliance and enforcement
  framework for the AODA. Many felt that this contributed to an atmosphere of
  confusion and uncertainty during the standards development process.”
- * “I have also made it clear that in light of the timing of this first
  review and because most of the standards are not in place, I am not in a
  position to address all of the issues that have been raised. Some are
  premature, while others are outside my mandate. I recognize that the first
  review will leave a number of unanswered questions and unresolved issues
  that have been brought to my attention. For example, the government has not
  yet established its compliance and enforcement regime. This will begin in
  2010 but will have to await a later review. I am satisfied that this issue
  and others will be addressed in time, either directly through the standards
  review process, or in the next legislative review, or indirectly as a result
  of my recommendations.”
You can read the Beer Report at:
http://www.servicecanada.gc.ca/
You can read the AODA Alliance’s analysis of the Beer Report at:
https://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:

. Education, awareness building and compliance assistance activities;

. A self-certification reporting model which would be accessible, available
online with links to compliance assistance materials, and allow for
automated assessment of the reports by the Ontario government;

. An implementation strategy for inspections and enforcement that includes
progressive and appropriate sanctions, as well as a continuous improvement
process to evaluate, monitor and modify the compliance approach to achieve
better results.

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

. Incorporating a new risk assessment tool into the reporting system to help
the ADO focus compliance activities in the areas that will have the greatest
impact on accessibility;

. Developing a Knowledge Information Tool to assist AODA Help Desk and
compliance staff better support businesses and organizations as they work
towards compliance;

. Drafting preliminary policy options for a proposed incentives strategy.

* “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

. Continue to work with other key government ministries to expand the
inspection and enforcement model for 2012 and beyond.

. Move forward with a recommendation for the designation of an existing
tribunal to hear appeals under the AODA. This tribunal will be established
for the purposes of hearing appeals of director’s order to comply with a
standard or pay administrative monetary penalties. The tribunal will not
have authority to hear claims by individuals related to contraventions of
the standards by obligated organizations.

. The ADO will continue to develop an Administrative Monetary Penalty
program to support enforcement activities and to act as a disincentive to
wilful non-compliance.

. Include flexibility into the design of Accessibility Compliance Reporting
program to allow for the incorporation of new standards as well as
additional functionality.

. Further develop an information management system that ensures efficient
information sharing and updating.”

****

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.
QUICK FACTS

. These standards could help Ontario become a destination choice for
tourists with disabilities, which would generate $1.5 billion in new
spending and grow the tourism sector between two and seven per cent.
. Canadians with disabilities spend $25 billion every year and influence the
spending decisions of 12 to 15 million other consumers.
. More than 1.85 million Ontarians have a disability and this number is
quickly rising as the population ages.
. By 2017, for the first time, Ontarians aged 65 and over will account for a
larger share of the population than children aged 0-14.
LEARN MORE

. See how communities across Ontario are growing more accessible.
CONTACTS
. Kevin Cooke
Minister’s Office
416-325-5219
kevin.cooke@ontario.ca
. Sandy Mangat
Communications and Marketing Branch
416-212-3262
sandy.mangat@ontario.ca

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