The Accessible Canada Act

The Accessible Canada Act

June 1, 2020

BY Sara Pon

Accessibility Legislation

In Canada, the federal government enacted the Accessible Canada Act (ACA) which came into force on July 11, 2019. The ACA, applying to everything under federal jurisdiction, is intended to remove barriers experienced by people with disabilities. The ultimate goal is to create a barrier-free country by 2040. The ACA sets out:

• How accessibility standards will be developed;
• What duties will apply to organizations who must remove barriers; and
• How the legislation will be enforced.

British Columbia is developing its own accessibility legislation. The province has drafted a framework, the British Columbia Framework for Accessibility Legislation, and released the results of its consultation process on February 5, 2020, the Summary Report Accessibility Legislation Consultation.  You can learn more about consultation feedback and the proposed framework for accessibility legislation in BC in this CCEL blog post.

This blog outlines the ACA provisions.

Basic Principles of the ACA

The ACA defines disability very broadly, stating in section 2 that “disability means any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment — or a functional limitation — whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society.” This approach mirrors the broad interpretation of disability applied by the Supreme Court of Canada.

The ACA states in section 5 that the government will focus on removing barriers in several specific areas:

(a) employment;

(b) the built environment;

(c) information and communication technologies;

(c.1) communication, other than information and communication technologies;

(d) the procurement of goods, services and facilities;

(e) the design and delivery of programs and services;

(f) transportation; and

(g) areas designated under regulations made under paragraph 117(1)(b).

Section 6 sets out the principles that underlie the act. These principles include:

• Treating everyone with dignity;
• Giving all people the same opportunities;
• Recognizing intersecting forms of marginalization and discrimination; and
• Including people living with disabilities in all aspects of law, policy, program, and standard development.

Importantly, one of the principles includes that all people should be able to make their own choices and have support in making decisions if they wish to. This would seem to uphold the rights of all people, including those with reduced capacity, to be meaningfully involved in decision-making and have access to supported decision-making.

The ACA applies to all regulated entities that fall under federal jurisdiction. This includes all parts of the federal government, crown corporations, the Canadian forces, the RCMP, banking, fisheries, immigration, inter-provincial trade and commerce, inter-provincial and international transportation, broadcasting, and telecommunications. Any regulated entities under provincial or municipal jurisdiction would be covered by that province’s accessibility legislation, such as travel on buses, trains, and ferries within a province or city. The ACA sets out some exceptions, such as exceptions for the universality of service requirement for the Canadian Forces, and certain physical and other qualifications for the RCMP. The ACA also applies to federal regulation of reserve lands and to First Nations band councils.

Governance Structure

Responsibility for accessibility matters has been given to the Minister of Employment and Social Development (SI/2019-56). The ACA creates several positions and bodies to help the Minister fulfil the mandate of creating a barrier-free Canada.

The Canadian Accessibility Standards Development Organization has been created with the responsibility to:

• Draft accessibility standards;
• Provide information, products, and services to support accessibility;
• Conduct and support research on identifying, removing, and preventing barriers;
• Provide information on best practices; and
• Report annually on their activities. (s 18, 36)

A board of directors oversees the Canadian Accessibility Standards Development Organization (CASDO). The majority of the board must be people living with disabilities and the board must be representative of the diversity of Canada and the range of disabilities. (s 23)

The Accessibility Commissioner has the responsibility for ensuring the ACA requirements and accessibility standards are being met, which includes receiving complaints, conducting inspections and investigations, and administering orders and penalties. These enforcement measures are discussed more below. The Accessibility Commissioner must report on their activities each year, including inspections, orders, violations, and complaints, and the systemic accessibility issues they have observed. (s 37-40)

The Minister can also appoint a Chief Accessibility Officer to advise them on systemic or emerging accessibility issues. If appointed, the Chief Accessibility Officer must write a report each year on how well the act is working and the systemic accessibility issues observed. (s 111-116)

Accessibility Standards and Requirements

Accessibility Standards 

The ACA intends for accessibility standards to be created which will be applicable to regulated entities under federal jurisdiction. CASDO is the body responsible for creating these accessibility standards. Additionally, the Canadian Radio-television and Telecommunications Commission and the Canadian Transportation Agency can make regulations on accessibility matters for regulated entities under their jurisdiction. These accessibility standards can be the subject matter of the ACA regulations. Thus far, no accessibility standards have been created, and no regulations have been made under the ACA.
 

Accessibility Requirements under the ACA: Sections 42-72

Accessibility Plans

• Regulated entities must create accessibility plans on how they are identifying, removing, and preventing barriers that people may face through interacting with their policies, programs, or services.
• Accessibility plans must be updated every three years, or a period specified in the regulations.
• Regulated entities must consult with people living with a disability when creating and updating their accessibility plans.
• Accessibility plans must be given to any person who requests them.

Feedback Process

• Regulated entities must create a process for how they will receive feedback about how they are implementing their accessibility plan and about barriers that people encounter in interacting with the regulated entity.
• The feedback process must be available publicly.

Progress Reports

• Regulated entities must publish progress reports on how they are implementing their accessibility plan, including what feedback they have received and what they are doing in response to this feedback.
• In writing this progress report, regulated entities must consult with people living with a disability.

Requirements under Specific Acts: Sections 42-64

Three types of regulated entities have specific requirements under different acts. The ACA specifies requirements for regulated agencies that are:

• Broadcasters;
• Canadian carriers or telecommunications service providers; and
• Part of the inter-provincial or international transportation network.

These types of regulated agencies must:

• Publish accessibility plans addressing how they are identifying, removing, and preventing barriers;
• Create and publish a feedback process on how they are implementing their accessibility plans and barriers faced by people they are interacting with; and
• Publish progress reports on how they are implementing their accessibility plans and the feedback they receive.

The accessibility plans and removal of barriers can relate to conditions, orders, or requirements under the Broadcasting Act, Telecommunications Act, or the Canada Transportation Act. People living with a disability must be consulted with in developing accessibility plans and progress reports.

Enforcement of Standards and Requirements

Inspections: Sections 73-74

The Accessibility Commissioner can inspect a location of a regulated entity to determine if the entity is complying with the requirements under the ACA for accessibility plans, feedback processes, and progress reports. In doing these inspections, the Accessibility Commissioner can:

• Examine any items or physical or electronic documents;
• Take copies of documents and take photographs;
• Access records through telecommunication; and
• Obtain the assistance of anyone at the location.

Enforcement Options

If the Accessibility Commissioner has reasonable grounds to believe a regulated entity has contravened the requirements under the ACA for accessibility plans, feedback processes, and progress reports, the Accessibility Commissioner has several enforcement options.

Compliance Orders: Section 75

• The regulated entity can be given a compliance order requiring them to correct what they are doing or failing to do.
• The compliance order will set a time limit for correcting the problem.

Monetary Penalties: Sections 77-93

• If the regulated entity contravenes certain sections of the ACA, this is a violation which can result in a monetary penalty.
• Applicable sections include the requirements to create and update the accessibility plan, the duty to consult, making accessibility plans available, creating a feedback process, writing progress reports, production orders, compliance orders, obstruction, and making false statements.
• The ACA states that the purpose of monetary penalties is to promote compliance with the act, not punish the regulated entity for their breach.
• The regulated entity must be notified, and this must include a plain language description of what rights and obligations were violated under the ACA.
• If the violation happens on multiple days, each day is considered a separate violation.
• The Accessibility Commissioner can only issue a penalty within two years of the violation.
• The maximum monetary penalty is $250,000.
• The Accessibility Commissioner can publish information about the violation.

Compliance Agreements: Sections 82-83

• As an alternative to paying a monetary penalty, a regulated entity can make a request to the Accessibility Commissioner that they enter into a compliance agreement.
• The Accessibility Commissioner will decide whether they are willing to enter into a compliance agreement with the regulated entity.
• The agreement will require the regulated entity to pay a security and agree to take specified actions to correct the violation.
• If the regulated entity does not comply with the agreement, they will have to pay twice the amount of the original monetary penalty.

Complaints Process

Any person who feels they have been affected by a violation of the ACA can file a complaint with the Accessibility Commissioner.

Filing of Complaints: Section 94

• A person can file a complaint for a variety of reasons, including “…physical or psychological harm, property damage or economic loss as the result of — or that has otherwise been adversely affected…” (s 94(1)).
• An employee cannot submit a complaint to the Accessibility Commissioner if they are eligible to file a grievance under another act.
• The regulated entity must receive notice of the complaint.

Investigation Process: Sections 95-108

• The Accessibility Commissioner has the power to investigate a complaint that falls within their jurisdiction.
• The Accessibility Commissioner must give written notice on whether they decide to investigate.
• The parties can agree to resolve the complaint through a dispute resolution mechanism.
• The Accessibility Commissioner may conduct the investigation, including requiring people to appear, compelling evidence and records, entering locations that are public or businesses, and administering oaths.
• If the complaint is substantiated, the accessibility commissioner has several remedies available.

Available Remedies: Section 102

• Order the regulated entity to correct the violation.
• Give the complainant the rights or privileges they were denied.
• Pay the complainant compensation for lost wages, expenses incurred because of the contravention, or costs incurred from obtaining alternate goods, services, or items.
• Pay the complainant compensation for pain and suffering and/or compensation if the contravention was from a willful or reckless practice, up to a maximum of $20,000.

 

Resources and Information

• For more information on the BC accessibility framework visit the BC Government’s consultation page.
• For information on BC Building Codes on accessibility visit the BC Government’s building codes page.
• For federal accessibility standards, visit the newly-created Accessibility Standards Canada page.
• For resources on inclusion, visit disability organizations’ websites:

Inclusion BC

Disability Alliance BC

posAbilities