Tribunal fines Employers for Contraventions of the AODA reports Optimal Performance’s AODA experts; Employers Beware!

Tribunal fines Employers for Contraventions of the AODA; Attention BOMA Members, IFMA, FAMOS & OPC Clients

Over the Summer 2014, the License Appeal Tribunal, which has jurisdiction over the Accessibility for Ontarians with Disabilities Act, 2005 (the “AODA”) in Ontario, released its first decisions regarding AODA compliance. When the first compliance deadlines under the AODA arrived in 2011 & 2012 there was minimal enforcement activity for private companies. Over the past two years however, the Provincial government has increased enforcement measures. OPC Inc feels our clients should be aware of the AODA obligations particularly as it relates to the Ontario Build Code passed December 27 2013 and coming into full force January 1 2015.  With this along with the IASR (Integrated Accessibility Standards) there are upcoming deadlines with associated noncompliance penalties.

Private employers in Ontario have had to be compliant with the Customer Service Standard of the AODA since at least January 1, 2012. Compliance included a requirement to file an Accessibility Report (we hope our readers have the CSS well in hand & have reported to the Ministry).

The four recent AODA decisions released by the License Appeal Tribunal included administrative penalties levied against organizations that failed to file their Accessibility Reports with Service Ontario.

In all four cases, the Tribunal reduced the fine imposed by the Director of the Accessibility Directorate of Ontario (the “Director”). The Directorate had imposed a fine of $2,000 on each of the organizations for failure to file an Accessibility Report. Under the AODA regulations, there is a schedule to assist the Director in determining the appropriate penalty. When imposing an administrative penalty, the Director takes into account the impact of the contravention and the history of contravention on the part of the employer. For corporations, the administrative penalties range from $500 to $15,000.

The Director imposed a penalty of $2,000 on each of these corporations, on the basis that the failure to file an Accessibility Report was a major contravention, since the AODA relies on self-reporting to monitor compliance. The Tribunal disagreed with the Director, finding that failing to file an Accessibility Report was a minor contravention. Since this was the first AODA reporting cycle, there was no contravention history so this factor had no comparison. With respect to the impact of the contravention, under the AODA a contravention is considered to have a major impact where, for examle, it may pose a health and safety risk to persons with disabilities (PwD). In this case, the Tribunal found that the contravention did not meet this level. In three of the decisions, the Tribunal reduced the fine to $500. 

These financial penalties for now are not large however this signals that the Directorate and the Tribunal are actively engaged in AODA enforcement matters. OPC expects to see harsher penalties in the future as we move into the IASR, Emergency Plans, Design of Public Spaces (such as areas surrounding your Buildings) and the Ontario Build Code where health, safety, dignity and independence is impacted.  

Further to this, Administrative penalties are not the only enforcement tool the Director and Tribunal have in place.  Fines for offences under the AODA can reach up to $50,000 for each and every day or part day that an offence happens for individuals (and corporate directors) and up to $100,000 for corporations. 

On or before December 31, 2014, large private sector employers (50 & >) will need to file another Accessibility Report. Further, commencing January 1, 2014, large private sector employers had to be compliant with some new requirements under the AODA Integrated Accessibility Standard, including the creation of an Accessibility Policy and an Accessibility Plan as well as written Multi-Year Plans due every 5 years.

It is our suggestion at OPC that any new buildings being planned by your businesses in Ontario or for buildings being renovated, commence using parts of the OBC’s ABES Standards this Fall – such as Universal Washrooms, Signage and Wayfinding, Accessible entrance doors and elevator design. It is also our suggestion that as projects move along that IT, Technology, HR, Build Owners & Managers all convene together to ensure the IASR requirements, the Multi-Year Plan documents, Intranet, Websites, Built Environment and ergonomic design are all coordinated. Once coordinated, mandatory compliance reporting can occur well before compliance dates occur.

OPC Inc Clients – The Ontario Tribunal are now ensuring investigation of lack of compliance with the AODA occurs and they are also awarding per diem financial penalties.

The AODA is here to stay and this is being enforced.  OPC Inc’s AODA team is ready to help build your program, provide elearning or video based training and perform Build Code Compliance Audits.

Please contact our team at AODA@optimalperformance.ca to set up an initial meeting to talk about a strategic approach to AODA compliance.  JESleeth Team Leader AODA