The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50805
O P I N ION BY CHERYL SATIN BANKING ON CORPORATE The more advance information, the better the compliance Services with the goal of making Ontario completely accessible for disabled per- sons by January 2025. The first legislation of its kind in Canada, it applies to all public, private, and not-for-profit sector organizations. It mandates the creation of standard development committees in five general areas: customer service, transpor- tation, information and communication, employment, and built environment. Each committee must create draft standards to remove or prevent barriers to access- ibility, for review and enactment as law. Collectively, the AODA and the standards will require organizations operating in Ontario to be proactive in ensuring their activities are accessible and promote par- ticipation from individuals with disabil- ities in all aspects of Ontario society. To date, only the customer service stan- T dard has been enacted. In May 2010, the draft standards relating to employment, transportation, and information and com- munication were integrated into one to provide more harmony to the timelines and requirements imposed, and submitted to the ministry for consideration. A draft of the accessible built environment stan- dard is being reviewed by the ministry, but is expected to take longer to enact as it is technical and detailed. It will overhaul building codes and apply to all new con- struction and extensive renovations. The act represents a significant step, shifting the focus from achieving access- ibility on a case-by-case basis through individual human rights complaints to standardized compliance. It is also a considerable improvement over its U.S. counterpart, the Americans with he Accessibility for Ontarians with Disabilities Act came into force in 2005 and charged the Ministry of Community and Social Disabilities Act of 1990 (ADA), the first of its kind in the world, and the 1992 Australian Disability Discrimination Act (DDA). While the ADA has been success- ful in making American physical spaces more universally accessible, its efforts to remove barriers for persons with disabil- ities to get and keep jobs have not. This failure is partly from the ADA's restrictive definition of "disability," which requires the disability to "substantially limit" a major life activity in order to be protected. When applying the ADA, U.S. courts have found people experiencing temporary or episodic impairments do not necessarily have substantial limitations on the applic- able life activity. Jurisdictions that support "employment at will" are also reluctant to let the ADA shift the balance of power from the employer to the employee. Australia's DDA only imposes a rea- sonable accommodation requirement on an employer deciding whether to hire or terminate an individual, but does not address removing barriers during one's employment. Further, due to a lack of public education and methods for com- pliance, and no requirement to produce standards for various areas of public life, including timelines for compliance, the DDA has not been particularly effective. Learning from these, the Ontario act uses a broader and more liberal definition of "disability," has a more extensive scope, a definitive timeline for implementation, and the imposition of broad enforcement powers. While there is general support for the goals and intent of the act, the lack of available information, anticipated financial burdens, and intended deadlines for com- pliance are worrying many organizations doing business in Ontario. For instance, compliance with the accessible built environment standard is to be required within 24 months of its enactment. While a draft standard is available, many busi- nesses, which often plan significant con- struction projects more than two years in advance, are reluctant to plan using regu- lations that could change. Similarly, busi- nesses would ideally be permitted to factor the costs of upgrading or replacing equip- ment designed to provide information, products, or services to the public, or facili- tate transportation or communication, into their existing capital expenditure planning processes. With a deadline for having a barrier-free Ontario of Jan. 1, 2025 already set, the need to know and understand the requirements is increasingly important, especially in uncertain economic times. And, given the AODA will affect almost all businesses in Ontario, whether they are based elsewhere in Canada or globally, there should be widespread dissemination of this information. Accordingly, the lack of public aware- ness and standardized training is also of concern. While many consultants have developed a specialty in training and advis- ing businesses on individualized compli- ance measures, a broader public-sponsored informational and training campaign may be helpful in making the legislation suc- cessful and would help defray costs. As with new occupational health and safety standards, and environmental and recyc- ling initiatives, businesses are generally prepared to support them, but it would be better if the timelines for compliance were reasonable, and the information and requirements easily discernable and read- ily available well in advance. Cheryl Satin is a partner at Blake Cassels & Graydon LLP in Toronto practising in the business group. She can be reached at cheryl.satin@blakes.com. The opinions expressed in this article are those of the author alone. www.CANADIAN Lawyermag.com A PRIL 2011 17