The federal government has taken an important step to ensure that Canadians with disabilities have an opportunity for equal participation in the workplace. On June 21, 2019, Bill C-81, the Accessible Canada Act, received Royal Assent and subsequently came into force on July 11, 2019. The legislation's objective is to make Canada's federally regulated sectors barrier-free in a number of areas, including specifically employment. The Act sets a timeline of January 1, 2040, to achieve this objective.
Who does this effect?
The Act applies to all federally regulated entities. It specifically requires that employers who operate or carry out a work, undertaking or business in a federal sector have an obligation to comply with the requirements of the Act.
The Act also sets out different obligations for specific industries and sectors - including broadcasting undertakings, telecommunication service providers and carriers, and transportation services. Regulations pertaining to accessibility will be developed pursuant to the Act for these specific industries.
What are employer's new obligations?
In addition to forthcoming industry-specific regulations, federally regulated entities are required to:
- Create accessibility plans: Federal employers must create accessibility plans in consultation with persons with disabilities, which describe the entity's strategy to improve accessibility and meet their legal duties. The entity is required to evaluate its policies, programs, practices and services to identify and develop strategies to remove barriers, and prevent new barriers. It is compulsory to publish these plans to the public, and update them every three years.
- Develop feedback tools: Federally regulated entities will need to set up a mechanism to receive and address feedback from its employees and consumers, which can include complaints about barriers encountered. A description of the feedback process will need to be published.
- Publish progress reports: In consultation with persons with disabilities, these reports will detail how the organization fulfills its accessibility plan and outlines its consultations. In addition, the reports must describe any feedback received and how it was addressed.
How will the Act be enforced?
The Act establishes a new Accessibility Commissioner who is responsible for enforcing compliance. The Commissioner is empowered to ensure compliance using the following enforcement mechanisms:
- Inspections: the Commissioner is able to make inspections to ensure federal entities are meeting their accessibility obligations. The Commissioner has a broad authority to carry out this function;
- Production orders: the Commissioner may require the production of records to verify compliance or prevent non-compliance;
- Compliance orders: If the Commissioner has reasonable grounds to believe that the entity is not meeting its obligations, an order can be issued requiring compliance.
- Notice of violation with warning or penalty: If the Commissioner finds that the regulated entity has committed a violation, they can issue a notice of violation, which may include a warning or a fine up to $250,000. If the entity pays the fine, it is deemed to have committed the violation. While regulated entities can challenge the Commissioner's findings, certain defences are not available. Entities cannot defend against a violation by arguing that due diligence was exercised or that they reasonably believed in the existence of facts that would exonerate them.
- Compliance agreement: If a notice of violation has been issued, the entity may enter into an agreement with the Commissioner to address the violation and/or reduce the fine.
- Publication: The Commissioner can publicize the names of the entity, nature of violation and penalty imposed on the organizations that violate the Act.
- Complaint mechanism: The Act provides a mechanism for individuals to make a complaint and receive compensation if they experience physical, psychological or financial harm because an entity did not meet its accessibility obligations. The compensation can include specific losses, like lost wages, and damages for pain and suffering with a maximum of $20,000 for each violation.
- Investigation by the Accessibility Commissioner: When a complaint is filed, the Commissioner has broad powers to conduct an investigation and dispose of the complaint. The Act provides the Commissioner with the discretion to refuse to investigate in cases where the complaint is trivial, vexatious, or made in bad faith. The Commissioner will provide a written decision at the conclusion of the investigation, as entities have a right of appeal to the Canadian Human Rights Tribunal.
Federally regulated employers should monitor the legislation as regulations are developed in the future and ensure compliance with these new obligations.
For all questions related to these legislative changes, the Gowling WLG Employment, Labour & Equities Group would be pleased to assist. Find out more about our Group and how to contact a specific lawyer.
This article was prepared with assistance of Ravital Zabarsky, a student in our Ottawa office.