Speaker's Corner: Ontario businesses worried about new accessibility rules

The Accessibility for Ontarians with Disabilities Act and the accessibility standards it contemplates are intended to create a barrier-free Ontario through the creation of a compliance-based rather than complaints-oriented system.

The act shifts the burden from people with disabilities to complain to Ontario’s public and private organizations that provide goods and services to comply.  

The definition of disability in the act is very broad and mirrors that of the Ontario Human Rights Code.

Disability includes not only any degree of physical disability, infirmity, malformation or disfigurement but also mental impairment or developmental disability, learning disability or mental disorder. In addition, the definition of barrier is extremely wide.

A barrier means anything that prevents people from fully participating in all aspects of society because of their disability, including a physical, architectural, information, communications, attitudinal or technological barrier as well as a policy or practice.

The act creates five accessibility standards in the areas of customer service, information and communication, employment, transportation, and built environment. As has been well publicized, Ontario’s private sector will have to comply with the customer service standard by Jan. 1, 2012.

The customer service standard is the only one enacted to date. It applies to every person or organization that provides goods or services to members of the public or other third parties and has at least one employee in Ontario.

It will be interesting to see what the Ontario government decides in terms of how the act and the customer service standard will apply to federally regulated entities, if at all.

It may well be that federally regulated organizations are subject to the act and the obligations of the customer service standard in particular because there’s no federal legislation that occupies that field.

Even provincially regulated entities can be confused about whether the customer service standard applies. What many organizations seem to ignore is the extension to other third parties, which means the customer service standard does not apply only to organizations engaging in retail sales.

It is clear that retail establishments are the true focus of the customer service standard, but the regulation has been drafted so broadly that even manufacturers who rarely see clients on site must comply with it.

What does compliance mean? The public perception is that the customer service standard will completely revamp how goods and services are delivered to Ontarians. This is not so. What it requires is that organizations do the following:

•    Implement policies, practices, and procedures addressing how the organization provides goods and services to people with disabilities. They must ensure those policies, practices, and procedures are consistent with the principles of dignity, independence, integrated provision of services, and equal opportunity.

•    Communicate with customers in a manner that takes into account a person’s disability.

•    Create a feedback process for customers and make information about it available.

•    Ensure that the organization’s policies, practices, and procedures address the use of assistive devices by people with disabilities.

•    Ensure that the organization’s policies, practices, and procedures allow the use of service animals.

•    Ensure that the organization’s policies, practices, and procedures allow the use of support people.

•    Train employees, contractors, volunteers, and agents.

•    Provide notice of temporary disruptions in facilities or services for people with disabilities.

In addition, organizations with 20 or more employees must ensure that their policies, practices, and procedures are available in accessible formats and produce them upon request in a manner taking into account a person’s disability.

They must also report to the Ministry of Community and Social Services through an online questionnaire.

The broader public sector, which was required to comply with the customer service standard on Jan. 1, 2010, has not dramatically revamped how it provides goods and services to Ontarians.

According to representatives of some of those entities already complying with the customer service standard, by far the most daunting and involved aspect was meeting the obligation to train all employees, contractors, volunteers, and agents.

It may very well be that when representatives of private sector organizations draft their accessibility policies as required by the customer service standard, they may realize that it is in fact quite difficult for people with disabilities to access their goods and services.

Such a conclusion may very well drive that organization to revamp how it delivers its goods and services to Ontarians. Still, it will not be the obligations of the customer service standard that strictly require such revamping.

Moreover, organizations may already be required to revise how their goods and services are made available to people with disabilities. Ontario’s existing regulations prohibit discrimination in the provision of services.

For example, s. 1 of the Human Rights Code provides that “every person has a right to equal treatment with respect to services, goods, and facilities without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.”

There is case law under this section in which organizations have been required to make premises accessible to people with disabilities, an obligation that was imposed before compliance with the new act and the customer service standard was required.

None of this is to say that the obligations of the customer service standard are not onerous. Indeed, organizations will need to be diligent in ensuring that they are in compliance by Jan. 1.
Of particular significance is the training requirement.

Organizations with a large number of employees, contractors, volunteers or agents will have to spend a considerable amount of time training them.

The other four standards contemplated by the act, which have been published in draft form but not yet enacted as regulations, will hopefully result in the elimination of all barriers that prevent the full participation of people with disabilities in Ontario society.

The customer service standard is a step in that direction.

Ellen Swan is an associate at Davis LLP who practises labour and employment law.

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