Accessibility for Ontarians
by Robert B. Reid
In June, 2005, the Accessibility for Ontarians with Disabilities Act (AODA) became law in Ontario. It is designed to make Ontario
“accessible” to everyone, regardless of disability, by January 1, 2025.
Although the final target date seems a long time in the future, dramatic changes
will be needed throughout the Province if that goal is to be met.
The Act defines “disability” very broadly and it applies to both the public and
private sectors. It provides for what amounts to a statement of principle, a
time frame for implementation, a method for creating standards, and an
enforcement mechanism. What it does not identify is the actual standard to be
applied to any particular industry, activity or building. As a result, it is
impossible to know at this point how the Act will impact on any given
situation. What is virtually certain, however, is that once standards are
developed, the impact will be dramatic.
Purpose
The Act sets out that its purpose is to benefit all Ontarians by:
“Developing, implementing and enforcing
accessibility standards in order to achieve accessibility for Ontarians with
disabilities with respect to goods, services, facilities, accommodation,
employment, buildings, structures and premises on or before January 1, 2025”
through the collaborative involvement of persons with disabilities, the
government and representatives of industries and various sectors of the economy.
(Section1)
To achieve accessibility means to remove
barriers, and barriers can be anything that prevents a person with a disability
from fully participating “in all aspects of society because of his or her
disability including a physical barrier, an architectural barrier, an
information or communications barrier, an attitudinal barrier, a technological
barrier, a policy or a practice.” (Section 2)
As is typical with the Act, the definition
of “barrier” is broad. Although we tend to think of architectural matters like
entranceways to buildings, elevators and accessible washrooms, the definition is
cast much more broadly and could include, for example, internet and computer
access for the blind. The administration of university examinations for
individuals who have learning disabilities could change standard terms such as
fixed time frames for writing tests, prohibition of crib notes etc.
In the same way that the definition of
barrier is broad, the disability to be accommodated is also broadly defined to
include:
“Any degree of physical disability,
infirmity, malformation or disfigurement that is caused by bodily injury, birth
defect or illness and . . . includes diabetes, epilepsy, brain injury,
paralysis, amputation, lack of physical coordination, blindness . . . deafness .
. . muteness . . .” and also includes a condition of mental impairment or
developmental disability, a learning disability, mental disorder or injury for
which WSIA benefits were claimed or received”. (Section 2)
In keeping with the theme of broad
application, the Act applies to “every person or organization in the public and
private sectors of the Province of Ontario” (Section 4) and accessibility
standards may apply to a person or organization that:
“provides goods, services or facilities, employs persons in
Ontario, offers accommodation, owns or occupies a building, structure or
premises or is engaged in a prescribed business, activity or undertaking or
meets such other requirements as may be described”.
One would be hard pressed to identify a
business in Ontario that would not be affected by the broad definitions
contained in the Act. Although there is a power by Regulation to exempt any
person or organization or class as well as any building, structure or premises
from the application of the Act, one can speculate that the exemption provisions
will be used sparingly since to do otherwise would effectively undercut the
Act’s purpose.
The key to AODA in terms of how it will
impact on any given person or organization is to be found in the development and
application of the “accessibility standards”. Those standards are not defined
in the Act but are left to be developed over the course of time by committees
which will include persons with disabilities, representatives of industries
etc., and government representatives. The establishment of the so called
“Standards Development Committees” triggers the first time frames in that the
Committees will be required to phase in the accessibility standards in stages of
five years or less (from the establishment of the Committee), ending in 2025.
The extent to which the Act will affect a business in Ontario will be directly
related to the accessibility standards created by the Standards Development
Committee and the implementation schedule designed by the Committee.
Throughout the
implementation period and thereafter, every person or organization to whom an
accessibility standard applies must file an accessibility report annually or at
such other intervals as is required by the Director. (Section 14) This
provision parallels the existing terms of the Ontarians With Disabilities Act,
2001 which applies to governments at various levels.
Although there is a comprehensive
provision for enforcement including the usual requirements to allow access to
premises by inspectors, the provision for administrative and quasi criminal
penalties and an appeal procedure, enforcement should be the least of an
employer’s concerns at the present time. It is sufficient to say that, once
established, if an accessibility standard is not met, the Act has enough teeth
to require compliance.
The clear purpose of the Act is to ensure
accessibility regardless of an individual’s disability. The key method for
doing so is by the establishment of mandatory standards for accessibility to be
developed and phased in over time.
Although the ultimate date for full
implementation is 20 years in the future, it is highly desirable for businesses
to work with one another in their respective sectors to have broad input into
the deliberation of the committees that will establish the accessibility
standards. While the purpose of the Act is noble, it will not be a success if
its effect on organizations is to create a crushing burden. Fortunately, there
is sufficient flexibility in the Act, through exemption provisions and through
the development of standards as well as the specific consideration of the size
and type of a business to prevent the most serious consequences. However, input
from the business community is critical so that problems may be identified in a
timely way and in advance of decisions being made as to reasonable accessibility
standards and realistic time frames for implementation.
Every employer is well advised to consider
anticipated accessibility standards, even in advance of those standards being
established when buildings or premises are being renovated or new premises
acquired. As technology changes and investment is made in new equipment and
software, accessibility considerations should form part of the decision making
process. It is not too soon to begin discussions with representatives of
disabled people to receive input on their needs prior to accessibility standards
being set. Similarly, architects, office designers, equipment and machinery
manufacturers and software suppliers should all be faced the accessibility
question prior to related financial decisions being made by employers.
It may well also be prudent to engage in
discussions with municipalities and other levels of government that have been
working with somewhat similar legislation over the past several years to benefit
from their past experience in matters of planning for accessibility.
Ultimately, recognition of the direction
established by the AODA and advanced planning is the best way to help achieve
the goals set by the Act while avoiding unforeseen and undesirable financial
costs and disruption.
Lancaster, Brooks & Welch L.L.P.
St. Catharines Office
P.O. Box 790, 80 King Street., St. Catharines, Ontario, L2R 6Z1
Tel: 905.641.1551 Fax: 905.641.1830
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Tel: 905.735.5684 Fax: 905.735.3340
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55 Main Street West, Grimsby, Ontario, L3M 1R3
Tel: 905.594.1263 Fax: 905.594.1268
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Administrator.
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