Jennifer Thompson

The Accessible Canada Act (“Act”) came into force on July 11, 2019, ushering in the start of a march towards a Canada without barriers for persons with disabilities. While the Act only applies to federally-regulated industries (including, for example, telecommunications, banking, interprovincial trucking, and transportation), the federal public service, Canadian Forces and Crown corporations, it is anticipated to have a wide ranging impact, both in terms of the anticipated improvements for persons with disabilities and the steps federally-regulated organizations will need to take in order to be compliant. Organizations that provide services or facilities to federally-regulated organizations should also take note of this legislation as they may need to support their federally-regulated client’s accessibility obligations under the Act.

Purpose of the Act

The aim of the Act is to identify and remove existing barriers that prevent “the full and equal participation in society” of persons with disabilities, and to prevent new barriers from being erected, in a range of prescribed areas including employment, the built environment, procurement of goods, services and facilities and transportation, to name but a few.

“Barrier” is defined extremely broadly and includes “anything physical, architectural, technological, or attitudinal, anything that is based on information or communications or anything that is the result of a policy or practice”, while “disability” encompasses any impairment, whether permanent, temporary or episodic in nature, expanding the scope and impact of the legislation.

What are the main obligations under the Act?

Those subject to the Act have three key ongoing obligations:

1. Accessibility Plans – Organizations must publish an accessibility plan considering their “policies, practices and services in relation to the identification and removal of barriers and the prevention of new barriers” in relation to the prescribed areas. The first plan is to be published within a year of a date to be fixed by regulations, with revised plans to be published every three years after. Notably, organizations are required to consult persons with disabilities in the preparation and updating of the plan.

2. Feedback Process – Organizations must establish a process for receiving and dealing with feedback about the implementation of the accessibility plan and any barriers encountered by employees or members of the public.

3. Progress Reports – Organizations must prepare and publish a progress report detailing the implementation of its accessibility plan. This should include any feedback received and how it has been taken into consideration. As with the accessibility plan, persons with disabilities must be consulted in the preparation of the report. It is expected that the regulations will mandate how often the progress reports will be required.

The practical impact of compliance on federally-regulated organizations, particularly those of a smaller size, will be significant. It should be noted that there will be varying obligations for certain industries such as transportation and telecommunications under the anticipated regulations, which may differ from the general obligations noted above.

How will the Act be enforced?

The Act provides that violations of the Act may lead to a warning notice and/or an administrative monetary penalty of up to $250,000 per violation. More details are expected to be included in the regulations. Alternatively, organizations may be permitted to enter into compliance agreements with the Accessibility Commissioner in lieu of a penalty, but this is not a guaranteed right. The Accessibility Commissioner will also have wide ranging powers to order production of documentation and to perform audits.

In addition, individuals will be able to bring complaints against federally-regulated organizations for “physical or psychological harm, property damage or economic loss” caused by failure to comply with the Act and regulations. The Accessibility Commissioner will be responsible for any investigation of the complaints and may choose to uphold or dismiss them. If upheld, the organization may be ordered to take corrective measures or may be ordered to pay compensation to the individual. Compensation may include up to $20,000 for pain and suffering.

Conclusion

While there are many details to be filled in by regulations (yet to be published in draft), the Act clearly demonstrates the intent to make significant changes to the ability of persons with disabilities to participate equally in society. Although the deadline for the first accessibility plans has not yet been set, organizations impacted by the Act should review their facilities, policies and procedures in light of the Act to see how these may need to be amended. Those who provide services and/or facilities to affected organizations should also consider changes they may need to make to support the organization and ensure future business.

This update is intended for general information only. If you have questions about the above, please contact a member of our Labour & Employment group.

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