A recently launched class action lawsuit in California should be noted by all Canadian businesses that make use of debit and credit card machines for customer transactions.

Two wheelchair-bound Californian women recently launched a class action lawsuit against Wal-Mart, claiming that its debit and credit card machines may be out of reach for people with disabilities. The suit advises that people who use wheelchairs and other assistive devices may not able to swipe their own credit or debit cards at check out. In this instance, customers must then hand their cards to the customer service representative, with whom they must also share their private pin numbers or passwords. According to the claim, Wal-Mart has refused their requests to lower their card machines. The lawsuit alleges that Wal-Mart’s refusal to lower the height of the machines is discriminatory and a violation of the claimants’ civil rights. The lawsuit also cites an alleged violation of the Americans with Disabilities Act of 1990 (“ADA”) and the California Disabled Persons Act.1

While the class action is still in its infancy – in fact the claimants have yet to specify the damages they are seeking – the case should raise awareness of the potential for similar claims regarding credit and debit card machines on this side of the border.

Applicable legislation in Canada is predominantly determined by province:

Ontario has similar legislation to the ADA, called the Accessibility for Ontarians with Disabilities Act, 2005 (AODA). The AODA applies to every person or organization in the public and private sectors of the province that has at least 1 employee. The broad plan of the AODA is to achieve accessibility for Ontarians with disabilities with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises by 2025. The first accessibility standard deals with customer service and had an ultimate compliance deadline of January 1, 2012 for the private sector.

In Alberta and British Columbia, there is no legislation similar to California’s ADA or Ontario’s AODA. However, in most provinces, claims can be brought under provincial human rights legislation, which provides protection to persons with disabilities in a variety of contexts. Importantly, such legislation prohibits discrimination in the provision of services on the basis of, among other things, disability or handicap, and generally speaking, requires that all facilities or services customarily available to the public, be accessible to people with disabilities unless doing so would constitute an undue hardship.2 In general, all entertainment and hospitality facilities, including restaurants, must be accessible to people who use wheelchairs, unless it would be an undue hardship for the service provider to make the facility accessible.

Human rights legislation in Canada has been used to require taxi companies to offer 24 hour wheelchair accessible taxi service; to require a movie theatre to have a staffed and accessible entrance open during business hours so as to allow “patrons with disabilities to enter the theatre in the same way as able-bodied persons; and to make a pathway accessible following a complaint of discrimination based on the complainant’s inability to use the pathway due to the fact that she was in a wheelchair to require a transit authority to announce stops on all bus and subway routes for the benefit of the visually impaired.

Could a claim similar to the Wal-Mart class action occur in Canada? The collective provisions of the AODA and provincial human rights legislation may provide some impetus for the pursuit of claims against Canadian businesses. Precisely what form those claims might take in law, and whether they might be brought before the courts as a class action, remains to be seen. In the meantime, retailers and service providers who make use of credit and debit machines for their customers and clients might want to examine access to their machines by those with disabilities in order to determine if there might be challenges there, and if so, if they can be remedied.