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The Ontario Human Rights Tribunal recently examined an application before it and an earlier statement of claim made in civil court by the same person, and concluded that the claims were virtually identical. They were based on the same facts, made the same allegations and sought similar remedies. Subsection 34(11) of the Ontario Human Rights Codeprevented the tribunal from hearing the application.

Essentially, the tribunal prevented the duplication of claims in different forums and dismissed the human rights application.

The applicant filed an application with the Human Rights Tribunal, alleging discrimination and reprisal against her employer on the ground of disability and sex. She claimed that her employer treated her unfairly and ultimately dismissed her when she tried to return to work following a short-term disability leave.

Then it became known that the applicant had already made a wrongful dismissal claim in civil court against the employer. Therefore, the employer filed a request with the tribunal that the application be dismissed because there was an ongoing civil court action concerning the exact same matter.

Subsection 34(11) of the Human Rights Code states that a person cannot make an application under the Code if a civil proceeding has been commenced in court, a court has already determined the issue of whether the right was infringed, or the matter has been settled.

The tribunal carefully examined the claims at the tribunal and at court, and concluded that the applicant relied on the identical facts, alleged that the same types of employment-related disability and gender rights were violated, and sought similar remedies.

The tribunal noted that the provision in the Code is there to prevent this kind of duplication from occurring, and the applicant was barred from bringing her application to the tribunal. As a result, the tribunal application was dismissed.

Employers should be aware of this decision. When a claim is brought against them in multiple forums, employers are recommended to be proactive in limiting the duplication of proceedings. As can be seen in this case, a request to dismiss an application at the tribunal is appropriate in situations where the same matter is in progress or has already been dealt with in court. It is important to prevent an employee’s forum-shopping before it gets out of hand and various decisions are made on the same matter. This requires the employer to be aggressive by bringing the request to dismiss before the tribunal as soon as possible.

Christina Catenacci
First Reference Human Resources and Compliance Editor

© 2012 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

Why is this good news? Because many organizations are still making decisions and rushing to train staff. Some organizations are just learning about their obligations now. I am not advocating finishing the work late, but if you are late, there are resources—accessibility experts, e-learning courses, the Accessibility Directorate website and webinars—ready to be of service. Better yet, take the 30-day trial option on Accessibility Standards PolicyPro to provide guidance.

If you are cutting corners now to meet compliance, schedule a proper awareness program about persons with disabilities as soon as possible. Changing attitudes is the most difficult part of this agenda. Most people believe their efforts to remove barriers will burden them financially, when the reality is that historical attitudes have burdened persons with disabilities and placed them in this position to recognize and remove barriers ASAP.

Depending on the size of your organization, a coordinated effort between staff responsible for AODA compliance and experts can rapidly help your organization meet its obligations. By preparing your policies, practices and procedures prior to staff training, you can save time and money when disseminating the necessary information. Combining the generic legal portion of staff training about the customer service standards with your actual policies, practices and procedures provides practical experience for the attendee.

There are concerns about the emergency preparedness requirements under the Integrated Accessibility Standards. I would advise all organizations to comply on time. Since the law will be in effect as of January 1, 2012, one can imagine if a disaster should strike, whether your insurer will use these requirements against you if procedures are not in place.

Let us quickly recap the obligatory actions to complete. Under the customer service standards, if you have one employee or more, your obligations are to:

• Establish policies, practices and procedures on providing goods or services to people with disabilities
• Use reasonable efforts to ensure that your policies, practices and procedures are consistent with the core principles of independence, dignity, integration and equal opportunity
• Set a policy to allow people to use their personal assistive devices on your premises and about any other measures your organization offers (assistive devices, services, methods) to help people to access your goods and services
• Communicate with persons with a disability in a manner that takes into account the person’s disability
• Allow people with disabilities to be accompanied by their service animal in those areas of your premises that are open to the public, unless the animal is excluded by another law
• If the service animal is excluded by law, then have an alternative method to provide services
• Allow customers with disabilities to be accompanied by a support person in premises open to the public
• Provide notice ahead of time on what admission, if any, you will charge for the support person of a person with a disability
• Provide notice when facilities or services on which customers with disabilities rely are temporarily disrupted.
• Train staff, volunteers, contractors and other third parties who interact with the public on your behalf on topics outlined in the customer service standard
• Train staff, volunteers, contractors and third parties who are involved in developing your policies, practices and procedures on topics outlined in the customer service standard
• Establish a process for people to provide feedback on how you provide goods or services to people with disabilities
• Include in this feedback process how you will respond and take action on complaints
• The information about your feedback process must be readily available to the public

There are additional requirements for designated public sector organizations or other providers with 20 or more employees. Employers must:

1. Document policies, practices and procedures for providing accessible customer service, and meet other document requirements in the standard.
2. Notify customers that required documents are available upon request.
3. When providing the required documents to a person with a disability, provide the information in a format that takes into account the person’s disability.

Employers with 20 or more employees must include the following in their documentation:

• General information on policies, practices and procedures
• Policies, practices and procedures on service animals and support   persons
• Notice of temporary disruption of services or facilities including the steps to take
• A training policy
• A description of the feedback process

With respect to the emergency preparedness provisions of the Integrated Accessibility Standards:

• Under the information and communication standard, if your organization provides emergency procedures, plans or public safety information that is available to the public, then you will provide the plan in an accessible format upon request
• Under the employment standard, if the employer is aware that an employee has a disability that requires accommodation in an emergency, the employer must provide the employee with individualized emergency response information in an accessible format; employers must also designate someone to provide assistance during the emergency
• In the transportation standard, all conventional and specialized service providers will make available to the public information on accessibility equipment, features of their vehicles, routes and services, and provide this information in an accessible format upon request

What is the carrot the province is offering for early filing? Your organization may be showcased in a video so that others can learn from your experience. Free advertising!

I do have one question for the government that will not likely receive a response. Why did you pick New Year’s Day for compliance in action and New Year’s Eve for filing? This is like getting a bill for your driver’s licence on your birthday. Who comes up with these dates? No wonder people complain!

Happy New Year everyone! We will chat again next year. I look forward to hearing about your experiences and any questions.

Suzanne Cohen Share
Access (SCS) Consulting Services

© 2011 First Reference Inc. All Rights Reserved. | Permalink | 3 comments |

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First, there seems to be widespread belief that employees on leave are somehow entitled to more protection than their colleagues who remain actively at work. In recent years, many organizations have seen downsizing or “right-sizing”, with the result that a number of positions and even entire departments were eliminated. However, many organizations were under the false impression that they could not terminate the employment of an individual on leave. As a result, they might dismiss 11 out 12 people in a department that was eliminated, but maintain the 12th employee on payroll as they were on leave and deemed to be “untouchable” at the time.

It is certainly true that an employee cannot be dismissed, or otherwise penalized, due to the fact that they have taken leave. However, the fact that they are on leave does not protect them from any legitimate and unrelated termination of their employment. Simply put, employees on leave are not entitled to greater protection than their colleagues that are at work.

Needless to say, however, the employer should be prepared to prove that the dismissal was entirely unrelated to the taking of leave or the underlying cause (for example, a pregnancy or disability). The onus will effectively fall on the employer, if the termination is challenged, to prove their case. Furthermore, even if only a very small part of the reason for the dismissal was the taking of leave or a protected ground under human rights legislation, then the employer will face liability.

There is also widespread confusion regarding what happens when the individual is ready to return to work at the end of their leave. In most cases, the employer will have an obligation to return the individual to the same position that they held prior to the period of leave. This does not mean a similar position, or a position of the same pay grade. What it means is that if the position that the individual previously held still exists, they must be put back into that position.

I have seen situations where employers attempt to circumvent this obligation by renaming the position, or modifying the job duties ever so slightly and then deeming it to be a new position. Courts and tribunals will assess the reality of the situation. If the purported elimination of the position is found to be a sham, then the employer will be penalized. If the position that the individual held prior to their leave truly no longer exists, then the obligation will usually be to put them into a “comparable position”.

An issue that I am often asked about has to do with employees that are on medical or disability leave for extended periods of time. There are various myths out there regarding how long an employer has to wait before they can deem the contract to be “frustrated” and terminate the relationship. The most common myth is that the employer must wait two years. This seems to have its genesis in the fact that most disability insurance policies provide that benefits will be paid during the first two years if an individual is unable to perform their current job. However, after two years, most policies change and will only pay benefits if the individual is unable to perform any job. What often happens is that the employer learns that the individual on leave has had their disability benefits cut off. The employer then concludes that they are entitled to terminate the employment relationship or, alternatively, to insist that the employee is no longer disabled and must therefore return work. If they do not, the employer then threatens to terminate the employment relationship or “deem the individual to have abandoned their employment”. Either way, they are mistaken.

It is important for employers to understand that eligibility for disability benefits and entitlement to medical leave are two very different concepts. It is entirely possible that an employee will not be entitled to disability benefits, but will still be disabled in the sense that they cannot return to work. As we all know, employers have a duty to accommodate the disabled worker to the point of undue hardship. This can include allowing them to remain on medical leave.

So when can an employer deem the employment contract to have been frustrated by the employee’s inability to work?  There is no black and white rule. There are many cases in which employees have been off work for years and the courts have said that the contract had not yet been frustrated. The courts will assess whether there is any reasonable likelihood that the individual will be able to return to work in the reasonably foreseeable future. If there is, then it is unlikely that the court will conclude that the contract of employment had been frustrated.

This was an issue that the court faced in a recent case involving Costco. The employee, Mr. Naccarato, had been off work for approximately five years. Costco terminated Mr. Naccarato’s employment based primarily on his family doctor’s report, which indicated that it would not be possible to state when Mr. Naccarato could return to work. Not surprisingly, Mr. Naccarato sued for wrongful dismissal. Costco lost, primarily because there was no medical evidence to support a conclusion that there was no reasonable likelihood that Mr. Naccarato could return to work in the reasonably foreseeable future. Furthermore, in light of the large-scale operation of Costco, there was no basis upon which to conclude that his ongoing absence hurt the company in any meaningful way. As a result, continuing to accommodate him by allowing him to remain on leave did not constitute undue hardship.

In all cases, employers should be aware of their rights and obligations and not make any assumptions.

Stuart Rudner
Miller Thomson LLP

© 2011 First Reference Inc. All Rights Reserved. | Permalink | 3 comments |

‘Tis the season for us to put away the lawn furniture and take apart the garden. The sunlight hours are decreasing and the plants around the house are turning brown. We are now faced with leaves on the ground, colder, damper weather, and soon, Christmas commercials. As we take out our winter coats and snow shovels, it is important to remember that this is the time that Seasonal Affective Disorder (SAD) can hit employees. What can employers do?

It is important for employers to be aware and recognize that Seasonal Affective Disorder can cause employees to experience these main symptoms, as noted here and here:

• Increased appetite and cravings for sweet or starchy foods
• Weight gain
• Increased sleep and daytime sleepiness
• Less energy and ability to concentrate in the afternoon
• Loss of interest in work or other activities
• Slow, sluggish, lethargic movement
• Social withdrawal
• Unhappiness and irritability
• Feelings of despair

The causes have to do with factors such as amount of light, body temperature, genes and hormones.

Moreover, SAD is related to a person’s biological clock, which regulates the circadian rhythm. This “clock” responds to changes in season because of the differences in the length of the day, and tells the body to sleep as the days shorten. Since we usually live and work in conditions that don’t follow the seasons (e.g., 9-to-5 workdays), this response puts us out of step with our daily schedules.

Furthermore, research suggests that hormones and neurotransmitters, including serotonin and melatonin, chemical messengers in the brain that help regulate sleep, mood and appetite, may be disturbed in cases of SAD.

There is treatment, and the prognosis is good. Things that have been known to help the situation include:

• Being active with regular exercise, especially doing outdoor activities during the day
• Light therapy (phototherapy that involves using sunlamps that mimic outdoor light)
• Keeping curtains open during the day and sitting near windows
• Doing yoga
• Massage therapy
• Eating regular healthy meals and avoiding alcohol and illegal drugs
• If symptoms are more severe, medication and cognitive-behavioural therapy

Even without treatment, symptoms typically disappear in the spring.

Like major depressive disorder, SAD is a mental illness and might fall in the category of disability under human rights legislation. Employers are recommended to be supportive of employee who experience SAD, as they have a duty to accommodate such employees to the point of undue hardship.

Accommodation could involve providing increased flexibility in work hours or break times, or something more substantial such as a leave of absence or temporary job restructuring, retraining or assignment to an alternative position. It really depends on the circumstances.

More specifically, an employer could allow an employee suffering from SAD to take a longer daytime break than usual to walk around the block in the sunlight. Another solution might be to allow the employee to take more frequent eating breaks. Alternatively, the employee could be allowed to move to a workstation closer to a window. Another option could involve letting the employee work around an important cognitive-behavioural therapy or massage therapy appointment.

Many accommodations can be made easily, and at minimal cost. However, it is important for employers to explore the options with the employee in their efforts to meet their duty to accommodate.

The Ontario Human Rights Commission suggests the following when accommodating an employee on the ground of disability:

• Accept requests for accommodation from employees in good faith
• Request only information that is required to provide the accommodation
• Take an active role in examining accommodation solutions that meet individual needs
• Deal with accommodation requests as quickly as possible, even if it means creating a temporary solution while a long-term one is developed
• Maximize confidentiality for the person seeking accommodation and be respectful of his or her dignity
• Cover the costs of accommodations, including any necessary medical or other expert opinion or documentation

Disability is a complicated topic and it is important for employers to understand various illnesses they may confront in the workplace so they can fulfil their responsibilities under the applicable human rights legislation.

Christina Catenacci
First Reference Human Resources and Compliance Editor

© 2011 First Reference Inc. All Rights Reserved. | Permalink | 2 comments |

In the infamous Keays v. Honda Canada case, I was lucky enough to represent the Human Resources Professionals Association when they intervened at the Supreme Court of Canada hearing. Our submissions were relatively simple: we asked the Court to confirm that the mere act of asking an employee with a known disability to provide doctor’s notes in order to justify workplace absences did not constitute a failure to accommodate. The submission was made in light of comments in the trial judge’s decision that seemed to equate the requirement of doctor’s notes in such circumstances to an act of bad faith. Fortunately, the Supreme Court was receptive to our submissions and confirmed that, in and of itself, requiring doctor’s notes, even for an employee with a known disability, does not constitute a failure to accommodate or an act of bad faith.

Employers are often faced with doctor’s notes that say something along the lines of “Joe was absent from work yesterday for medical reasons”. Or, perhaps even worse, “Joe advises that he missed work yesterday as he was sick”. In both cases, employers are left scratching their heads, unsure as to whether or not there was a valid reason for the individual’s absence.

At the same time, most employers recognize that individuals sometimes need time off for reasons entirely unrelated to sickness. They may have to take a child to an appointment or an activity; they may have to travel for a family function; they may simply need some time to catch up on personal errands. Many employers conclude that employees “abuse” sick days for these reasons.

I, and others, have suggested that employers simply formalize this reality by providing a certain number of personal days each year. Rather than tying the absence to illness, employers can simply provide their employees with time off in order to look after their personal responsibilities. The personal days can be lumped into vacation time, as long as it is administered properly, or simply offered as additional time off. Each employer can assess what is reasonable for its operations and workforce and establish its own policy accordingly.

I don’t mean to suggest that this is a perfect solution. Realistically, most employees will see this as a “perk” that should be used, and will make sure to take every single day off, whether they need to or not. That said, whether or not the personal days are paid or unpaid will certainly be a factor for many employees. Just as organizations assess how much vacation time to provide, they can assess whether providing personal days is realistic, and if so, how much they can provide. Doing so can eliminate the monitoring that is necessary to address abuse of sick days.

If employers do continue to provide designated sick days, I encourage them not to unnecessarily restrict themselves. I often see sick leave policies that provide that the employer can require a doctor’s note for absences of a certain number of days, usually three. However, we have all seen the employees that seem to become sick on the Fridays before long weekends. If the policy in place only allows the employer to require a doctor’s note for absences of three days or more, then they will not be able to insist that the employee justify his mysterious extra-long weekends with medical documentation. When I ask clients why they put that policy in place, they typically have no explanation. It is far more effective to give the organization the discretion to require appropriate documentation. So long as the discretion is not used in a manner that is discriminatory or for the purpose of harassing employees, employers will be able to manage absences more effectively.

There is no right or wrong answer in dealing with this issue. I would welcome comments as to what readers have tried, and whether the measures have succeeded.

Stuart Rudner
Miller Thomson LLP

© 2011 First Reference Inc. All Rights Reserved. | Permalink | 3 comments |

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The case involved an individual living in Toronto, who suffered from some congenital conditions that caused him to live with a great deal of pain. Though he tried several strong prescription painkillers, he experienced serious side effects, developed tolerance, or was unable to function at all. Eventually, he discovered that marijuana helped with his pain. This led to him obtaining an ATP. He smoked about 14 grams of marijuana per day.

The problem came when the applicant tried to smoke his medical marijuana in public places such as restaurant patios with the cigarette smokers. He was expressly refused the right to consume his medicine in about 16 establishments. The owners understood that he had the ATP, but stated that though they wanted to accommodate him, they had a liquor licence they had to abide by. Section 45(2) of Regulation 719 under the Liquor Licence Act says the proprietors of licensed establishments can be fined or lose their licence if they let customers smoke marijuana. The managers would say things like, “Just smoke outside the door and I’ll advise the staff you have an exemption and to leave you alone.”

The tribunal agreed that there was a prima facie case of discrimination based on disability, but this discrimination could be justified. That is, the provision under Regulation 719 was reasonably necessary, and accommodation of individuals with ATPs would result in undue hardship. On the other hand, this was not the case for simply possessing medical marijuana, so an order was made that this part of the provision should not be enforced.

What did it come down to? The respondents pointed to the evidence about harm of “sidestream” smoke that left levels of THC (tetrahydrocannabinol, the effective medicinal ingredient in marijuana) in the bodies of people nearby the smoker who passively inhaled the smoke. How much THC left in the body is in dispute among the medical experts, however.

The tribunal stated, “I find, based on the expert evidence, that sidestream marijuana smoke poses a risk to passive inhalers in open-air environments such as uncovered patios of restaurants and bars. There is a risk of a pharmacological and/or toxicological effect. Some level of ‘impairment’ is also possible.” In other words, persons who inhale the sidestream smoke might experience some degree of marijuana “high”.

Consequently, the respondents were able to establish that there was a serious risk to passive inhalers from sidestream marijuana smoke, giving rise to undue hardship. Thus, the measure, while discriminatory, was reasonably necessary to accomplish a legitimate legislative purpose. The challenged provision was justified as it pertained to smoking the medical marijuana.

However, the court ordered that ATP holders are allowed to possess medical marijuana while attending the establishments in question. Also, the decision applies only to smoking marijuana, and leaves open the possibility of orally ingesting the drug while in these establishments.

What does this mean for employers? Employers must be aware of this rule if they are owners of liquor-licensed establishments, and they must train their staff to act in accordance with the law.

Christina Catenacci
First Reference Human Resources and Compliance Editor

© 2011 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

The case hinges on the employee’s ability (or inability) to “reliably palpate [i.e., measure] a pulse” with his fingers. His MS caused reduced sensation in his fingers, you see. The employer argued that palpating a pulse is a bona fide occupational requirement for paramedics. The employee disagreed.

According to the Court, the tribunal should have asked, even if palpating a pulse constitutes a bona fide occupational requirement (BFOR), did the employer reasonably accommodate the employee and should the employer have permitted the employee to work in some other position (existing or created) earlier than it did?

Further, the tribunal should have examined whether it would constitute undue hardship for the employer to employ the employee as a paramedic-scheduled driver (the employer argued this would have imposed undue hardship). Also, the tribunal erred in law when examining whether the employer treated the employee fairly with due respect for his dignity during the accommodation process.

Some background

Even though the employee had relied on his partner for a year to palpate pulses, when a new superintendent learned of the situation, he suspended the employee. The employee began working part-time as a driver, but was being paid at the rate of a paramedic. The problem was that he was not given any work; he was only allocated work after all of the other paramedics had been scheduled, namely three days in a year.

The Human Rights Tribunal found that the employee’s discrimination claim was justified in part. Even though the employer was able so show that the prima facie discrimination was justified because palpating a pulse constituted a BFOR, the employer was not able to show compliance with the procedural aspect of accommodating the employee. That is, by unnecessarily delaying accommodation into an alternative position, the employer failed to treat the employee with dignity and respect during the accommodation process. The employee was awarded damages for injury to dignity, feelings and self-respect, and for lost wages and mitigation-related expenses.

The employer appealed to the Supreme Court, which confirmed the following critical points in respect of the duty to accommodate an employee who suffers from a disability:

• Although the employer showed that the ability to palpate pulses was a BFOR, an employer’s duty to accommodate does not stop with consideration of the employee’s existing job. Employers have to be flexible in applying their standards if such flexibility enables the employee to work and it causes no undue hardship. The goal of accommodation is to ensure that those who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.
• The test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer tried to accommodate him or her, the employer could satisfy the test.
• The tribunal erred in law when examining whether the employer treated the employee fairly with due respect for his dignity during the accommodation process. The question should have been whether the employer reasonably accommodated the employee and whether it ought to have permitted him to work in some other position (existing or created) earlier than it did.

Therefore, the Court reverted the matter to the tribunal so it could decide whether the employer reasonably accommodated the employee, whether it did so soon enough and whether either of the accommodations imposed undue hardship on the employer.

Christina Catenacci
First Reference Human Resources and Compliance Editor

© 2011 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

The Accessibility for Ontarians with Disabilities Act (AODA) allows for severe maximum monetary penalties for any violation to the Act. The maximum penalties under the AODA include:

• A person and unincorporated organizations that are guilty of a major offence under this Act can be fined up to $50,000 dollars for each day the violation continues
• A corporation that is guilty can be fined up to $100,000 per day
• Directors and officers of a corporation with fiduciary responsibility who are guilty are liable to a fine of up to $50,000 a day

This said, to encourage compliance, the government has established an administrative monetary penalties scheme that determines how and why an individual or corporation might face a penalty or fine. The scheme was established under Part V, Compliance, of the Integrated Accessibility Standards Regulation, which came into force July 1, 2011.

The scheme allows a ministry director or a designate to issue an order against a person, organization or corporation to pay a penalty amount as a result of non-compliance with the AODA or any of the accessibility standards.

These penalties and fines will depend on the severity and history of the contravention. The director will determine the severity of the contravention by ranking the contravention as minor, moderate or major.

• A contravention of an administrative requirement is minor
• A contravention of a requirement for organizational preparedness is moderate
• A contravention is major where it involves a priority requirement that includes, but is not limited to, a contravention that may pose a health or safety risk to persons with disabilities

The contravention history of the person or organization will be determined by ranking it as minor, moderate or major in the following manner:

• A contravention history is minor where there has been no more than one previous contravention within the period of the current two reporting cycles
• A contravention history is moderate where there have been between two and five previous contraventions within the current two reporting cycles period
• A contravention history is major where there have been six or more previous contraventions within the current two reporting cycles period

A reporting cycle is a 12-month period. The current two reporting cycles period discussed above begins on the first day the person or organization must file the accessibility report and ends on the last day before the next report must be filed. If a person or organization filed an accessibility report before July 1, 2011, the two reporting cycles period is calculated from the first day that the person or organization was required to file an accessibility report.

For organizations and individuals that are exempt from the reporting requirement, the two reporting cycles period consists of the 12-month period that begins at the earliest of the following and ends at the end of each 12-month period:

• The first day that a director requests reports or information from the person or organization
• The first day that an inspector requires a person or organization to produce a document, record or thing
• The first day that the person or organization receives or is deemed to have received a notice of order under Act

So what are these escalating administrative penalties for non-compliance?

The largest lump sum penalty amount that can be issued to an individual or an organization that is not a corporation is $2,000 and the maximum for a corporation is $15,000. These maximum amounts can be issued per day. The potential for daily amounts will be reserved for contraventions that fall within the “major compliance history and major impact” category. Decision will be made on a case-by-case basis with careful consideration of the circumstances before an order for a daily amount is issued.

Thus, to be issued an order with the maximum penalty amount, the person, organization or corporation must:

• Have a compliance history that includes six or more previous contraventions; and
• The contravention must be a priority requirement of the accessibility standard, as determined by the ministry

Persons and organizations that are facing a director’s order will receive notice and will have an opportunity to make written submissions explaining the non-compliance. The person or organization must submit a response within 30 days after the order was made. A director’s review of the submission can result in the decision to reduce or rescind the initial penalty amount. The decision to reduce or rescind the initial penalty amount will be made on a case-by-case basis, taking into account the explanation provided by the organization and other factors such as steps taken to come into compliance and any economic benefit derived from the contravention.

In the event a person or an organization appeals a fine, the Regulation designates the Licence Appeal Tribunal to hear and determine the appeal.

If an organization fails to pay an administrative monetary penalty within the time specified in the order (within 30 days after the order was made, unless the order specifies a longer period), and makes no submission to the director, or appeal to the designated tribunal, the order can be filed with a local registrar of the Superior Court of Justice to be enforced like a civil court order.

Failing to comply with a director’s order is an offence under the AODA that can be prosecuted.

The government is appearing to use a nurturing approach to ensure compliance. The AODA has harsh maximum penalties but the Integrated Accessibility Standards Regulation softens the blow with substantially lower monetary penalties before the maximum penalties can occur.

I hope everyone is now clear on the approach a director will take to first encourage compliance and then prepare to give the non-compliant organization smaller monetary penalties. The initial penalties act as a reminder to organizations that after two years the higher amounts may be rapidly enforced.

This is just one of the tools directors may use to enforce compliance. Directors can also issue general compliance orders.

We all have a lot of work to do to accomplish accessibility, but one thing is clear: early recognition of the AODA allows organizations time to learn and plan ways to meet legal obligations. By understanding your obligations now, you can begin to draft your policies, practices and procedures, as well as your accessibility plan. Then, you actually have to do what you promise to do in those policies , practices and procedures and multi-year plans.

There is still a lot to talk about. Don’t forget to tune in for my next post.

Suzanne Cohen Share
Access (SCS) Consulting Services

© 2011 First Reference Inc. All Rights Reserved. | Permalink | 2 comments |

So what happened?

After receiving a referral from his psychiatrist, the complainant attended addiction counselling with AHS, which also happens to be his employer. He signed a consent form agreeing that the counsellor could contact the employee’s treating physician and collect information aimed at his treatment. Specifically, the consent stipulated that the information disclosed and collected was to allow AHS to provide him with continuous care, treatment planning and treatment services.

For more information, read my latest post on Slaw.

Yosie Saint-Cyr
First Reference Inc. Human Resources and Compliance Managing Editor

© 2011 First Reference Inc. All Rights Reserved. | Permalink | Make a comment |

First you want to identify the services you offer that people with disabilities rely on. Examples of services people with disabilities rely on are elevators and escalators. Notification must include reasons for the disruption and the estimated duration. You will provide a description of alternative facilities or services if they are available. Notice may be provided in easily seen places on the organization’s premises, on a website if any, or by any reasonable method. When posting your notice on the premises choose places that rapidly provide information to the public.

One area you might not have considered is an accessible washroom or any washroom. If you provide this amenity and customers rely on it, include this on the list of things that require notification when disrupted. Feel free to take this policy and extend it to benefit the general population. The notifications you will post in an appropriate public place should not target people with disabilities. You would just use words like Dear guest, patron, customer, etc. Perhaps a notification for the general bathroom will also please all your customers. Anyone who counts on this amenity can attest to the fact that a disruption can be a huge inconvenience.

A best practice is to prepare the templates in advance and decide where you want to post the notification. You may want specific templates prepared for chronic problems or anything with a regular scheduled maintenance shutdown. Allocate the responsibility to specific staff or departments and let them know the notification has to answer all of these questions:

• What is the reason for the disruption?
• How long do you anticipate the disruption will last?
• What alternative facilities, if any, are available?

If the disruption means the customer cannot access your services, you may also inform them on your website, if you have one, and perhaps on the telephone. Some organizations may decide to post the disruption notice on the pole by the parking spots for people with disabilities. This tells a person with a disability not to bother disembarking and proceed to find what they need elsewhere. Do what you reasonably can to provide information that can reach your customer as efficiently as possible.

Since you are obliged to provide a reason for the disruption you may want to train staff to use specific words that do not cause alarm or provide unnecessary visual details. Some reasons may just be regular maintenance or upgrades causing a temporary disruption of service. Sometimes the problem is so simple you may want to use words like “a broken pipe”.

Allocating responsibilities

Example: A staff person discovers a disruption and informs the staff person in charge of calling maintenance. The second staff person is in charge of placing the notice signs in conspicuous (public) places and informing the persons in charge of websites and the main telephone switchboard about the service disruption. The person at the switchboard may be taught to include a message about the disruption on the automated telephone customer service system. If you are aware the customer cannot gain access to your facilities, and you expect the disruption to last a long time, you will want other methods to continue to provide customer service. Prepare staff to offer alternatives and be creative to keep customers satisfied.

Make your policy and procedures clear to everyone

Example: The only elevator to reach your organization is under repair for the expected duration of three days. You post the notice of disruption of service on your website, post a sign at the site of the disruption and post a notice at the entrances. You offer a different method to reach the customer. You may offer appointments to meet the customer at a mutually agreeable and accessible location.

If you are an organization obligated to keep documentation, you will:

• Record who is responsible for what action
• Decide what level of detail about your organization you want to provide the public and government
• State in your policy that you will provide a notice of disruption of services, and include the legal obligations
• Decide if you want to include the departments responsible for providing notification; you may not want to provide a specific name of a person responsible, but you may want to include the title of the person or the department in charge

Assess all the assistive devices and services you provide people with disabilities and come up with a plausible case scenario in the event there is a disruption of service. You know your minimum legal obligations and what work needs to be done.

You may choose to provide more detail, for example, so when a disruption occurs, the customer with a disability is aware you have a telephone sales system or you are offering to meet the person with their order in another location. You may want to communicate in your public policy what your general alternatives are, to inform people with disabilities, reduce the number of questions on simple topics and advance your customer service. If you are an obligated organization with 20 or more employees, make legal documentation requirements work in your favour to increase your effectiveness.

What if all of your services are disrupted?

Generally, disruptions to all of your services, such as during a power outage or during a labour dispute, do not require this special notice. However, if the disruption has a significant impact on people with disabilities, you should provide notice of the disruption of service.

Why is this regulation just for people with disabilities?

People with disabilities need this information in order to proceed with their daily plans and change them when necessary. On the other hand, this is just good customer service that really benefits everyone. Your clients will likely appreciate the additional information. A parent with a baby carriage or anyone using a cart benefits when they are informed the elevator or escalator is not functioning. A person with a baby carriage or a few children has become used to using the accessible washroom that often has a dual purpose of acting as a family room. There are so many benefits everyone enjoys now because of laws originally intended to aid people with disabilities. Thumbs up on the Accessibility for Ontarians with Disabilities Act, a great way to say people with disabilities need something in order to have equal access, when in reality we all benefit.

Suzanne Cohen Share, M.A., CEO
Access (SCS) Consulting Services o/b 623921 Ont. Ltd.

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