by Leanne E. Standryk
Leanne E. Standryk examines Accessibility for Ontarians with Disabilities Act (AODA) proclaimed in force in Ontario in 2005.
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.
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.