The Accessible Canada Act (the Act) (PDF) - first introduced this time last year in Bill C-81 - received Royal Assent on June 21, 2019 and became law on July 11, 2019.
We briefly summarized the Act and its anticipated duties in our January update. In this article, we provide further details on the Act's enforcement mechanisms, which set it apart from similar legislation adopted by provincial governments, and insight into what federal sector employers can expect going forward.
Purpose and Application
The purpose of the Act is to make Canada's federal sector barrier-free by January 1, 2040. It will apply to federally-regulated entities such as banks, telecommunications companies, transportation companies, and the Government of Canada. It will not apply to certain businesses in Yukon, the Northwest Territories, or Nunavut.
The Act contains different standards for:
- regulated entities that carry on broadcasting undertakings;
- regulated entities that are Canadian carriers or telecommunications services providers;
- regulated entities in the transportation network; and
- other regulated entities.
For each federal-sector industry that the Act applies to, there will be obligations under the Act and under the relevant industry-specific legislation. For example, for entities that carry on broadcasting undertakings, the Canadian Radio-television and Telecommunications Commission (CRTC) will make regulations under the Broadcasting Act pertaining to accessibility, and the Governor in Council will make regulations under the Act regarding compliance. Although the standards are different for each group of regulated entities, the Act generally requires regulated entities to:
- Create accessibility plans respecting the regulated entity's policies, programs, practices and services in relation to the identification and removal of barriers and the prevention of new barriers. Plans must be created in consultation with persons with disabilities and representatives of the regulated entity.
- Set up feedback tools to receive feedback about the manner in which the regulated entity is implementing its accessibility plan, and the barriers encountered by the regulated entity's employees and customers. The regulated entity must publish a description of its feedback process.
- Publish progress reports respecting the 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.
We anticipate that additional duties will be set out in the regulations that are formed under the Act. These regulations will be developed in collaboration with the newly-formed Canadian Accessibility Standards Development Organization, an organization whose directors include individuals who are representative of the diversity of disabilities faced by Canadians. The additional duties that are developed will apply to the areas of:
- the built environment,
- information and communication technologies (e.g. websites),
- communication (other than information and communication technologies, but excluding broadcasting);
- 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 Accessible Transportation for Persons with Disabilities Regulation (the "Transportation Regulation") was registered under the Act on June 25, 2019. It will come into effect on June 25, 2020, with some of the obligations under the Transportation Regulation coming into effect on June 25, 2021 and June 25, 2022. This is the only regulation currently registered under the Act.
The Transportation Regulation sets standards for:
- communicating with persons with disabilities;
- training personnel that interact with the public, or that participate in making decisions or developing policies or procedures related to the regulations; and
- service requirements.
The Transportation Regulation also has extensive technical requirements with respect to how certain organizations (e.g. air carriers, rail carriers, marine carriers, bus carriers, and terminal operators) must comply with the Regulation.
Given the wide-range of entities that will be involved in the creation of regulations and the enforcement of the Act, the Act also amends the Canadian Radio-television and Telecommunications Commission Act, the Canadian Human Rights Act, the Parliamentary Employment and Staff Relations Act, the Broadcasting Act, the Telecommunications Act, the Canada Transportation Act, the Federal Public Sector Labour Relations Act, the Public Service Employment Act, as well as several other pieces of legislation. The amendments include, for example, incorporating reporting on accessibility into established reporting obligations set out in existing legislation, presumably to maintain a streamlined reporting process.
Enforcement of the Act
The enforcement powers under the Act - and in particular its individual complaint mechanism and investigation procedure - set it apart from similar accessibility legislation enacted by various provincial governments (e.g. Ontario's Accessibility for Ontarians with Disabilities Act and The Accessibility for Manitobans Act):
- Inspections: The Accessibility Commissioner (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 they are following the Act and its regulations. The Commissioner can issue production orders to verify compliance or prevent non-compliance. The Commissioner 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 will be $250,000 however, the purpose of a penalty under the Act is to promote compliance, not to punish an entity for non-compliance. Importantly, if an entity receives a Notice of Violation that sets out a penalty, and the entity pays the penalty, the entity will be deemed to have committed the violation. Further, there is no "due diligence defence"; an entity cannot defend a violation by arguing that it exercised due diligence to prevent the violation, or that it reasonably and honestly believed in the existence of facts that, if true, would exonerate it from the penalty. We anticipate that the regulations will set out further details regarding the specific monetary penalties that will apply for various different violations of the Act. For example, the Transportation Regulation contains specific penalties for breaches of different sections of the Transportation Regulation to a maximum of $5,000 for individuals, and $25,000 for corporations.
- Compliance Agreement: If a notice of violation has been issued, a regulated entity may be permitted to enter into a compliance agreement with the Accessibility 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 includes compensation for specific losses (like lost wages) as well as damages for pain and suffering of up to a maximum of $20,000 for each violation. This maximum will increase annually with the Consumer Price Index.
- Investigation by the Accessibility Commissioner: Where a complaint is filed with the Commissioner, the Commissioner is empowered to conduct an investigation into the complaint, much like the existing complaint model under the Canadian Human Rights Act. Not all complaints must be investigated; for example, the Commissioner can refuse to investigate a complaint if the complainant has grievance or review procedures otherwise reasonably available, or if the complaint is found to be trivial, frivolous, vexatious or made in bad faith. The Commissioner may also choose to discontinue an investigation if there is insufficient evidence to pursue the investigation. The Commissioner must provide a written decision with reasons regarding the outcome of a complaint. A complainant or regulated entity may appeal the decision to the Canadian Human Rights Tribunal.
- Publication: The Commissioner can publicize entities that violate the Act, including the name of the entity, the nature of the violation, and the penalty imposed.
The expectation under the Act is that the Commissioner, the CRTC, the Canadian Transportation Agency, the Canadian Human Rights Commission, and the Federal Public Sector Labour Relations and Employment Board will work together to address complaints, applications and grievances under the Act.
The only timeline currently set out in the Act, other than the timeline set out in the Transportation Regulation, is to ensure Canada is barrier-free by January 1, 2040. The Act anticipates that specific timelines for compliance with the accessibility standards will be set out the remainder of the forthcoming regulations. We are optimistic that these timelines will follow a phased-in approach, as we have seen with provincial accessibility legislation.