The Accessible Canada Act (Act), first introduced in June 2018 in Bill C-81, is now being considered by the Senate, and could soon be law.
The purpose of the Act is to make Canada's federal sector barrier-free. If enacted, it will apply to federally-regulated entities like banks, telecommunication companies, transportation companies, and the Government of Canada. It will not apply to certain businesses in Yukon, the Northwest Territories, or Nunavut.
It will apply to the areas of:
- the built environment,
- information and communication technologies (e.g. websites),
- communication (excluding broadcasting and information and communication technologies);
- procurement of goods, services, and facilities;
- the design and delivery of programs and services; and
- transportation (air, rail, ferry and bus carriers that operate across provincial or international borders).
The specific standards for these areas will be developed by the Canadian Accessibility Standards Development Organization (Organization). This new organization will also make recommendations to the Minister, and provide information, products and services related to accessibility standards. The Organization is permitted to charge for the information, products and services it creates. This is unlike the free resources that are available in other provinces with accessibility legislation.
Duties under the Act
The Act contains different standards for regulated entities: (a) in broadcasting; (b) that are Canadian carriers or telecommunications services providers; (c) in transportation; and (d) in other industries. Although the standards are different for each group, the Act generally requires regulated entities to:
• Create accessibility plans to identify, remove, and prevent barriers in policies, programs, practices, and services. Plans must be created in consultation with persons with disabilities and representatives of the regulated entity.
• Set up tools to receive feedback about how the regulated entity is implementing its accessibility plan, and the barriers encountered by employees and customers. The regulated entity must publish a description of its feedback process.
• Publish progress reports on implementation of the accessibility plan. The regulated entity must consult with persons with disabilities in preparing the report and explain how it consulted persons with disabilities in the report. These reports must also describe the feedback received and how it was addressed.
Enforcement of the Act
The Act will be enforced by the Accessibility Commissioner. The Commissioner will be a member of the Canadian Human Rights Commission appointed under the Canadian Human Rights Act. To ensure compliance, the Act contains the following enforcement measures:
• Inspections: The Commissioner can carry out inspections to verify compliance with the Act or prevent non-compliance.
• Compliance Audits and Orders: The Commissioner can examine records of regulated entities to ensure that entities are in compliance. The Commissioner can issue production orders to verify compliance or prevent non-compliance. He or she can also issue orders to stop or start any activity to comply with the Act and its regulations.
• Notice of Violation with Warning or Penalty: The Commissioner can issue a warning to comply or a notice of violation and fine. The maximum fine is $250,000.
• Compliance Agreement: If a notice of violation has been issued, a regulated entity may be permitted to enter into a compliance agreement with the Commissioner to address the violation and/or to reduce the fine.
• Individual Complaint Mechanism: Any individual that has suffered physical or psychological harm, property damage or economic loss as a result of a contravention of the Act can file a complaint with the Commissioner and receive compensation and other remedies. This include compensation for specific losses (like lost wages) as well as damages for pain and suffering up to $20,000. This maximum will increase annually with the Consumer Price Index.
• Publication: The Commissioner can publish the names of entities that violate the Act, including the name of the entity, the nature of the violation, and the penalty imposed.
Lessons from the Provinces and Next Steps
The Act is part of a wave of accessibility legislation creating mandatory standards to identify, prevent, and remove barriers for individuals with disabilities. Ontario's Accessibility for Ontarians with Disabilities Act, 2005 was one of the first pieces of accessibility legislation. Manitoba has since introduced The Accessibility for Manitobans Act, which started impacting the private sector in November 2018. Nova Scotia is also in the early stages of implementing An Act Respecting Accessibility in Nova Scotia.
The substance of accessibility legislation is in the regulations specifying the standards to be met. These standards have not yet been published for the federal sector; however, clues about possible standards may be drawn from the provinces with accessibility legislation. In Ontario, Manitoba and Nova Scotia, standards require policy development, and employee training. This is intended to assist individuals with disabilities and to create awareness about accessibility barriers. Other standards, like transportation, the construction of public spaces and websites standards, are technical and specific. We expect a similar approach in the federal sector.
It is encouraging that Ontario, Manitoba and Nova Scotia have focused on educating and assisting employers to comply. Timelines for compliance have been staggered. We hope the federal government will take a similar approach. But, we expect the availability of individual remedies will encourage more complaints in the federal sector. It may also make non-compliance more expensive for employer in the federal sector what we have seen elsewhere. For example, in Ontario, non-compliance is typically resolved through voluntary compliance or small administrative monetary awards.