This summer, the License Appeal Tribunal, which has jurisdiction over the Accessibility for Ontarians with Disabilities Act, 2005 (the “AODA”), released its first decisions pertaining to AODA compliance. When the first compliance deadlines under the AODA rolled around there did not seem to be much enforcement activity. Over the past two years, however, the government has increased enforcement measures. Employers should be aware of their AODA obligations and upcoming deadlines to avoid noncompliance penalties.
Employers in Ontario have had to be compliant with the Customer Service Standard of the AODA since at least January 1, 2012. In order to prove compliance, employers with 20 or more employees were required to file an Accessibility Report. The four recent AODA decisions released by the License Appeal Tribunal pertained to administrative penalties levied against organizations that failed to file this Accessibility Report.
In all four cases, the Tribunal reduced the fine imposed by the Director of the Accessibility Directorate of Ontario (the “Director”). The Director 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 in order to assist the Director in determining the appropriate penalty. When imposing an administrative penalty, the Director must take into account the impact of the contravention and the contravention history. 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. However, 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 was neutral. With respect to the impact of the contravention, under the AODA a contravention is considered to have a major impact where, for instance, it may pose a health and safety risk to persons with disabilities. In this case, the Tribunal found that the contravention did not rise to this level. In three of the decisions, the Tribunal reduced the fine to $500. In one decision, the fine was reduced to $250 where the employer was a smaller organization that no longer had 20 or more employees.
Although these financial penalties were not relatively steep, this signals that the Director and the Tribunal are actively engaged in AODA enforcement matters, and we could see harsher penalties in the future. Much like a taxpayer is liable for an offence for failing to file a timely return, but still may face fines and penalties for taxes payable, so too employers who fail to file timely Accessibility Reports may also face stiff penalties for failing to meet other compliance requirements.
Moreover, administrative penalties are not the only enforcement tool. 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. We have yet to see any reported decisions involving prosecutions for offences under the AODA, but no doubt they will be on the horizon.
On or before December 31, 2014, large private sector employers (those with 50 or more employees) will need to file another Accessibility Report. 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.
Employers should review their current AODA obligations to ensure that they are compliant. We will likely see increased enforcement measures for failure to file this next Accessibility Report.