How does Ontario enforce its accessibility legislation? It doesn't, advocates say
Ministry of Seniors and Accessibility maintains its enforcement actions are working
Cbc.ca
Jan. 4, 2024
Vanessa Balintec
In her years of advocating for people with disabilities, Alex Wilding says complaints to the province about organizations failing to comply with its accessibility law have gone nowhere.
The Accessibility for Ontarians with Disabilities Act (AODA) was meant to remove barriers for those with disabilities to ensure their full participation in society. But the Peterborough community advocate says there's no clear guidance on what recourse citizens have when organizations don't comply.
"It looks nice on paper. It looks impressive ... They can fine an individual $50,000 a day, and if they're a corporation, $100,000 a day for violation of the act... And then you think, OK, how do I start this mechanism?" she said.
"There isn't one," said Wilding, adding phone calls and emails have only led to employees reciting building codes and laws.
Wilding, who has disabilities including depression and obsessive compulsive disorder, is one of many advocates who say a lack of action from the province -- from the absence of a complaint system to meaningful enforcement -- underpins the AODA's failure. Reviewers appointed by the province have repeatedly pointed to such problems, saying they jeopardize the goal of an accessible Ontario by 2025.
The Ministry of Seniors and Accessibility told CBC Toronto Minister Raymond Cho was unavailable for the interview on this series. In a statement, the ministry said it uses a "modern regulator approach" that ensures organizations understand how to meet their legal obligations under the AODA, which has led to a number of audits and enforcement actions against non-compliant businesses.
Advocates say those numbers are too low and are evidence of the legislation's failure. And while there's a difference of opinion on exactly how to boost enforcement, critics say the status quo isn't tenable.
"The thing to celebrate is that there is the Human Rights Code, there is the Charter, there are some generous people who are willing to help people make use of it," said Wilding.
'Minimal, if any' audits, review finds
The AODA mandates standards and instructs all organizations with at least one employee in the province to remove barriers in five main sectors: public transportation, information and communication, the design of public spaces, employment and customer service.
According to Rich Donovan, the fourth province-appointed reviewer of the legislation's implementation, Ontario is required to monitor the compliance of over 400,000 organizations.
Donovan's interim report found the ministry has only 20 to 25 staff hired for that task, leading to "minimal, if any" onsite audits. His full review, released in December, found that one of the strictest penalties in the act -- a $100,000 fine per day of non-compliance by a large organization -- has never been used before.
Instead, the ministry relies largely on self-certification and the honour system, particularly for small businesses, which comprise the majority of organizations the act applies to.
"This is not a strong impetus for change," Donovan wrote.
In his review, Donovan recommended the province shift all accessibility regulation of the private sector to the federal government. He says doing so would make enforcement easier by allowing the province to tap into better established federal mechanisms like the Canada Revenue Agency, which regularly collects information from and audits small and medium businesses.
Employment and Social Development Canada confirmed to CBC Toronto its AODA counterpart, the Accessible Canada Act, only applies to federally regulated entities. But Donovan argues his recommendation is meant to at least spark discussion about what it would take to boost enforcement.
"Look, you've been at the table for 17 years, we haven't been able to do this properly," Donovan said, referring to the Ontario government's handling of the AODA.
"Come up with some new ideas."
Ministry defends 'proactive' complaints system
The ministry maintains its enforcement actions are working.
In an email to CBC Toronto, it says 98.8 per cent of verification audits were resolved without escalation or the need for enforcement action, adding that since 2017, it issued only 45 orders to resolve non-compliance issues.
"Key components of the AODA Compliance Assurance Program include education and outreach, self-certified reporting, audits, inspections, and enforcement measures including orders and administrative monetary penalties," Wallace Pidgeon, a spokesperson for Cho, said in an email to CBC Toronto.
And when organizations fail to meet their legal obligations, the ministry says it can pursue things like director orders and administrative monetary penalties -- though those have rarely materialized. The Licence Appeal Tribunal, which is designated to hear appeals related to AODA non-compliance, has only heard four director order appeals, with all of them resolved.
People always have the option to reach out to the organization and complain directly, said Pidgeon.
"This proactive approach aligns with modern regulatory principles," he wrote.
Reform enforcement and complaint system: advocates
David Lepofsky, a lawyer and chair of the advocacy consumer group AODA Alliance, says the AODA was partly created to help ensure people with disabilities wouldn't have to go through tribunals and courts to challenge barriers one by one.
"Most people with disabilities don't have the time, the energy, the legal support, and so on to do that," said Lepofsky.
Lawyer Hannah Lee with the specialty legal clinic ARCH Disability Law Centre says the legislation "lacks teeth" because it doesn't allow a person to make a direct complaint against an organization that could then be investigated by a third-party.
She points out the province reported just five fines from 2015 to 2017 out of the hundreds of thousands of organizations required to comply. The threat of penalties and enforcement orders aren't serious enough to encourage compliance, she adds.
"When you're assessing risk, you're not going to be in a position to really be incentivized to change and to go beyond the minimum," said Lee.
Lee says no Ontario government has made any substantive moves to address the issue of enforcement -- and that plays a role in attitudes around the importance of accessibility more broadly.
"Enforcement is part of that," she said.
"It affirms that this is something we care about as a society, that we don't condone. We devote resources to making sure that this is taken seriously."
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