While learning about the Accessibility for Ontarians with Disabilities Act (AODA), organizations should be aware of the legal limitations of the Act in relation to the Ontario Human Rights Code. Many people are unaware that the Code takes precedent.
I’ve been reading the public responses to the Proposed Integrated Accessibility Regulation. One submission that I find fascinating comes from the Ontario Human Rights Commission. The submission clearly states that specific topics in the proposed regulation are below the standard already set by the Code. Some of us may have presumed that the provincial government would harmonize AODA legal obligations with the Code. The AODA clearly recognizes existing legal obligations, stating that:
Nothing in this Act or in the regulations diminishes in any way the legal obligations of the Government of Ontario or of any person or organization with respect to persons with disabilities that are imposed under any other Act or otherwise imposed by law.
The most significant statement in the AODA is under the title Conflict: the law offering the highest level of accessibility for persons with disabilities prevails (2005, c. 11, s. 38). For example, the Ontario Human Rights Code prohibits organizations from discriminating against persons with disabilities in the provision of goods, services or facilities, accommodations, contracts, employment and education—now.
Are organizations likely to see a rise in litigation while fulfilling obligations under the AODA?
AODA regulations that obligate organizations to complete a specific accessibility accommodation are based on the number of employees in that organization. The Code, on the other hand, expects compliance unless your organization can prove undue hardship. Undue hardship is based on financial ability, health and safety requirements, and technical feasibility—not the size of the organization. As a result, many profitable organizations with few or no employees that demonstrate due diligence by complying with the AODA regulations, might later realize they are acting in conflict with the Code.
We would all benefit if the proposed regulations were written to work seamlessly with the Code. The commission’s submission on the Proposed Integrated Accessibility Regulation, includes 12 pages of recommendations that should be considered. The last statement regarding compliance and enforcement initiatives should be taken seriously:
The purpose of the AODA is to address accessibility barriers systemically and avoid case-by-case litigation so individuals with disabilities need only bring a matter before the Ontario Human Rights Tribunal as a last resort.
This statement is a notification to all organizations that if the government does not upgrade sections of the Proposed Integrated Accessibility Regulation, some of us may find ourselves in a courtroom.
So, imagine an organization with three employees reads the accessibility regulation and determines the company is off the hook from complying with specific accessibility requirements. A person with a disability complains about the company’s website and the policymakers state the organization is exempt. The person with a disability responds that you are not exempt under the Code and lodges a complaint, and it becomes a very messy situation for everyone involved.
The AODA was supposed to provide a viable road map to achieve accessibility and reduce time in courtrooms. Chances are that litigation will rise unless this problem is corrected.
Consider that some of the compliance dates in the proposed AODA regulation take away from the Code’s duty to accommodate unless it would cause undue hardship. Don’t be surprised if you thought you were following the law under the AODA, only later to realize you may lose in a courtroom because you could not prove an accessibility grievance would cause your organization undue hardship. Also, don’t be shocked when the Ontario Human Rights Tribunal is not amused when your legal representative tries to wave the AODA regulation as proof of the exemption. Mind you, a good legal representative will let you know that the Code is supreme and you need to qualify for undue hardship.
As we wait for the Proposed Integrated Accessibility Regulation to be finalized, there may be a chance this regulation will have sections that fall below the legal threshold of the Code’s duty to accommodate. My interest here is that you understand this factor when running your business. Below are two simple rules to avoid a legal entanglement:
- The Ontario Human Rights Code is supreme over the AODA.
- The law offering the highest level of accessibility for persons with disabilities prevails.
Hopefully, if we all keep these two rules in mind, we will avoid litigation. If the regulations released are below the thresholds of the Code, stick to the Code if your organization cannot claim undue hardship. If there is any other law in this country that better serves people with disabilities, then that law prevails.
I also recommend you include accessibility in your organization’s practices now.
My suggestion is not to wait for legislation to force you to comply by a certain date. If you are undergoing changes—for example, creating a new website—consider and include accessibility in the changes: make the website accessible now. This should reduce future expenses on upgrading or paying for a completely new site. Think accessible in all of your purchases, so when a future law states you must complete an action, you will be in control financially and may already meet your compliance obligations.
Suzanne Cohen Share, M.A., CEO
Access (SCS) Consulting Services