In the province of Ontario, 15.5% of the population has a disability. In recognition of this fact, the Accessibility for Ontarians with Disabilities Act (“AODA”) become law on June 13, 2005. The definition of “disability” under the AODA is the same as under the Ontario Human Rights Code, which states that a disability includes:
- any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device;
- a condition of mental impairment or a developmental disability;
- a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language;
- a mental disorder; or
- an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997
The AODA applies to all levels of government, non-profit organizations, and private sector businesses across Ontario with one or more staff. The law created mandatory accessibility standards with the aim of identifying, removing, and preventing barriers for people with disabilities, and also gave the government of Ontario the authority to set monetary penalties to enforce compliance with accessibility standards. Penalties for major compliance failures for persons and unincorporated businesses can reach $50,000 for each day the violation continues, and $100,000 for each day the violation continues for incorporated businesses. Directors and officers of a corporation are also liable for a fine of up to $50,000 per day. Needless to say, a compliance failure can be a costly proposition, leaving aside any reputational harm that may also be suffered.
Not all of the accessibility standards of the AODA came into effect at once, and in fact the compliance deadlines range from January 1, 2010 into 2021. The Accessible Customer Service Standard was the first standard to come into effect and all of Ontario’s non-profit organizations and businesses were to be compliant with that standard as of January 1, 2012.
On July 1, 2016 changes to the Customer Service Standard came into effect. Specifically, all accessibility standards – including the Customer Service Standard – will now be contained in a single regulation (O. Reg. 191/11), while the previous regulations applying to the Customer Service Standard (O. Reg. 429/07) and the Exemption from Reporting Requirements (O. Reg. 430/07), are simultaneously revoked.
Ontario Regulation 191/11 establishes the accessibility standards for each of information and communications, as well as employment, transportation, and the design of public spaces. The new regulation includes a number of changes to the existing standards, which should be noted. First, the definitions of “large” and “small” organizations have been updated such that a “large” organization is one with 50 or more people (whereas previously it had been 20), and a “small” organization is one with fewer than 50. The distinction is importance because “small” organizations, some of which would have previously been considered “large”, are not required to reduce to writing certain aspects of the Customer Service Standard, including the actual policy, any notices of disruption, feedback processes, training records and notification of the availability of policies.
The Regulation also includes a number of other updates and additions, in the areas of: (i) training; (ii) service animals and support persons; and (iii) feedback.
Previously, the Customer Service Standard had required organizations to train only those members who worked with customers or who created policies and procedures directed to how to interact with people with disabilities.
On July 1, 2016 the requirement was changed by section 80.49 of O. Reg. 191/11 such that all members of an organization, regardless of their role, must be trained on accessible customer service and how to interact with people with disabilities. This includes employees, volunteers, every person participating in developing the provider’s policies, and every person who provides goods, services or facilities on behalf of the provider.
Service Animals and Support Persons
Prior to July 1, 2016 organizations had been permitted to ask a person with a disability to provide a letter from a physician or nurse confirming that a service animal was required as a result of his or her disability. Now, as a result of section 80.47 of O. Reg. 191/11, documentation from any “regulated health professional” must suffice, which significantly broadens the number of professionals who can provide the letter.
With regard to support persons, prior to O. Reg. 191/11 organizations could require that a person with a disability be accompanied by a support person for health and safety reasons. As of July 1, 2016 that standard has changed and requires that before making the decision to require a support person, an organization must: (i) consult with the disabled person to consider and understand their specific needs; (ii) consider the health and safety reasons for requiring a support person based on the available evidence; and (iii) determine whether there is another reasonable way to protect the health and safety of the person or other on the premises. If, having considered all of the above, the organization determines that a support person is required, any amount payable for admission to the premises must be waived for the support person.
The Customer Service Standard had previously required organizations to provide a way for customers with disabilities to provide feedback about how the organization provides accessible customer service. As of July 1, 2016, section 80.50 of O. Reg. 191/11 requires organizations to ensure that this feedback process is itself accessible, by providing for accessible formats and communications supports, upon request.
All organizations are reminded that they must comply with these changes effective July 1, 2016. In order to ensure compliance we recommend:
- Training all members of the organization (including volunteers) on accessible customer service.
- Update the training records.
- Update accessible customer service policies.
All organizations are also reminded to file their 2017 accessibility compliance report by December 31, 2017.