The Accessible Canada Act (the “ACA”) came into force on July 11, 2019. The aim of the ACA is to make Canada barrier-free for persons with disabilities by 2040, by requiring entities within federal jurisdiction, including broadcasting and telecommunications undertakings, to identify, remove and prevent barriers to persons with disabilities in identified priority areas. These areas currently are: employment; the built environment; information and communications technologies; communication; the procurement of goods, services and facilities; the delivery of programs and services; and transportation.

At the heart of the ACA are new obligations of federally regulated entities to: prepare, publish and regularly update an accessibility plan based on consultation with persons with disabilities; establish a feedback mechanism on implementation of the accessibility plan and access barriers encountered by persons that deal with the entity; and prepare and publish annual progress reports on implementation of the accessibility plan that reflects feedback and consultations with persons with disabilities.

The ACA establishes a Canadian Accessibility Standards Organization with a mandate to develop accessibility standards and promote the identification, removal and prevention of barriers to persons with disabilities. The ACA also establishes an Accessibility Commissioner. The Accessibility Commissioner is tasked with investigating and rendering decisions on complaints regarding compliance with requirements, orders and regulations issued by the Governor in Council (“G in C”) under the ACA. 

The Canadian Radio-television and Telecommunications Commission (“CRTC”) has established accessibility obligations for broadcasting undertakings and for Canadian carriers and other telecommunications services providers (collectively, “TSPs”) pursuant to its jurisdiction under the Broadcasting Act (the “BA”) and the Telecommunications Act (“TA”) respectively. The ACA establishes new accessibility plan, feedback and reporting obligations for broadcasting undertakings and TSPs. The CRTC is authorized to make regulations concerning the timing, form and manner of publication of accessibility plans, feedback mechanisms, and progress reports and exempting broadcasting undertakings and TSPs from these requirements when they emanate from certain provisions of the ACA (referred to herein as the “CRTC-regulated Plan, Feedback and Reporting Obligations”). The G in C has regulation-making authority to address the timing, form and manner of publication of identical obligations established by other provisions of the ACA and exemptions from these obligations (referred to herein as the “G in C-regulated Plan, Feedback and Reporting Obligations”), as well as other matters such as prescribing accessibility standards, obligations and prohibitions for the purpose of removing barriers, and administrative monetary penalties (“AMPs”) for non-compliance with regulations, requirements and orders under the ACA. 

The regulations announced by the CRTC this month comply with the ACA requirement that the CRTC establish at least one regulation under the Act by July 10, 2021.  The new CRTC regulations establish classes of broadcasting undertakings and TSPs for purposes of exempting certain entities from CRTC-regulated Plan, Feedback and Reporting Obligations and identifying the deadlines for satisfying these obligations.  Private sector broadcasting undertakings and TSPs with less than 10 employees, as well as TSPs that are not required to register with the Commission, are exempted from the CRTC-regulated Plan, Feedback and Reporting Obligations. Broadcasting undertakings and TSPs with 100 or more employees must publish their feedback mechanism in the prescribed manner by June 22, 2022 and their initial accessibility plans one year later.  Broadcasting undertakings and TSPs with 10-99 employees have an additional year to comply with these requirements.  The CRTC regulations also address certain form and content requirements for CRTC-regulated Plan, Feedback and Reporting Obligations, the manner in which the mandated materials must be available, responding to feedback, and deadlines for responding to requests for plans and reports in alternative formats.

Draft G in C regulations were published for comment in February 2021 but have yet to be finalized.  These draft regulations propose to exempt entities with less than 10 employees from the G in C-regulated Plan, Feedback and Reporting Obligations and propose the same dates as the CRTC Regulations for the publication of initial accessibility plans.  However, the draft G in C regulations do not identify a date for publication of a feedback mechanism, with the result that this deadline is the same as the deadline for publication of an initial accessibility plan.  Other process, form and content directions relating to compliance with the G in C-regulated Plan, Feedback and Reporting Obligations in the draft G in C regulations are generally similar, but not always identical, to those in the CRTC regulations.  The draft G in C regulations also identify document retention requirements and a formula for determining AMPs.

The separate and duplicative schemes established under the ACA relating to accessibility plans, feedback mechanisms and progress reports of broadcasting undertakings and TSPs create complexity and the potential for conflicting obligations and enforcement.  The ACA states that the Accessibility Commissioner, the CRTC and other certain other federal regulatory bodies are “to work together to put in place mechanisms for the efficient and expeditious referral to the appropriate authority of accessibility-related complaints, applications and grievances” and “to foster complementary policies and practices in relation to accessibility-related matters”.  It remains to be seen whether the final regulations issued by the G in C will be consistent with those issued by the CRTC and how coordination and complementarity will be implemented in practice.