The Accessibility for Ontarians with Disabilities Act and Access to Justice
Vince Lai Yun YeungTuesday, December 20, 2022
It has been nearly two decades since the Accessibility for Ontarians with Disabilities Act (AODA) was passed. The Act mandates that organizations across all levels of government, private sectors, and non-profits become accessible to people with disabilities.[1] The end goal is to create a fully accessible Ontario by 2025. With the deadline just three years away, we must be prepared to ask whether Ontario can meet the AODA standards and ensure compliance in the next three years.
What is the AODA?
The purpose of the AODA is to set out a process for developing and enforcing accessibility standards to make Ontario more accessible and inclusive.[2] For instance, persons or organizations that are subject to accessibility standards must set out measures, policies, and practices for the identification and removal of accessibility barriers.[3] In effect since 2005, the Act expects public and private organizations to implement all accessibility standards necessary by January 1, 2025.
Building Inaccessible Spaces in a Modern Ontario
In 2017, Toronto lawyer and AODA Alliance chair David Lepofsky highlighted several inaccessibility barriers that plague academic institutions.[4] A key concern is that organizations continue to build new inaccessible environments in the face of the AODA’s mandate. Lepofsky attributed the accessibility barriers to several factors, such as the inadequate training of architects on accessibility. Furthermore, he added that the Ontario Building Code and Ontario’s Disabilities Act required stricter regulations and standards.
Seeing that institutions can bypass accessibility standards long after the AODA’s enactment, it is important that we begin asking how to better enforce the legislation. In an ethical and Charter-protected society, persons with disabilities should not be an afterthought in the context of accessing areas and services.
Enforcing the AODA
Section 83(1) of the AODA outlines the administrative penalties for violating the legislation. Penalties may include a fine of up to $100,000, in the case of a corporation or $50,000 for individuals.[5] However, concerns arise on whether the provincial government can enforce the AODA. In 2016 and 2017, the Accessibility Directorate of Ontario (ADO) found that two-thirds of private sector organizations are not providing all workers with AODA training or creating accessibility policies and plans.[6] Moreover, many public sector organizations also may be choosing not to comply, because they know that compliance will not be enforced as suggested by the lack of audits by the ADO.[7]
In a perfect society, organizations would follow the mandated standards because it is the right thing to do, not because they will be penalized for doing otherwise. Realistically, however, we cannot presume that every facility, service, or employer will adhere to a standard of daily living if not mandated by law. Educating the public and private sectors in Ontario on the importance of a fully accessible province as intended by the legislation is one hopeful avenue for encouraging compliance. Nonetheless, depending on good-faith compliance does not necessarily guarantee the implementation of accessibility standards. Therefore, state actors should be prepared to enforce the AODA, especially as the deadline approaches.
Modernizing Access to Justice for Persons with Disabilities
Over the years, the scope of ‘accessibility’ has evolved. Most notably, a new AODA requirement came into force for organizations to ensure that Ontario websites are accessible to computer users with disabilities on January 1st, 2021.[8] The province recognized that ‘accessibility’ should also encompass the flexible delivery of all legal services so long as it does not undermine the administration of justice. Remote court hearings demonstrate a great example of a modern world’s flexibility. With the option of virtual hearings, clients and lawyers alike avoid the hassles of on-site barriers, namely the lengthy travels, the availability of parking, and the costs of travelling. Next, clients will no longer be limited to choosing legal representation based on geographic proximity and will instead have the option to resolve their disputes remotely with legal representation from anywhere in the province.[9] This expands options for legal representation for people across Ontario, especially persons with disabilities who live in underserved and rural communities, and others with disabilities in the province.
Assuming that virtual hearings remain a norm for accommodating litigants in a post-pandemic world, we must ensure that those accommodations are also up to par with the accessibility standards mandated by the AODA. Though virtual hearings offered significant benefits to their participants, litigants faced other issues. According to a survey of family justice professionals, many respondents felt dissatisfied with virtual hearings and the adoption of new technologies.[10] Litigants living in poverty and rural families are disproportionately disadvantaged due to their lack of access to technology and the internet. As well, some litigants, particularly older individuals, reported experiencing greater challenges in learning and adapting to new technology.[11] Despite the many benefits of courts adopting technological advancements, disability barriers can be exacerbated in the process. That said, virtual accommodations alone are not sufficient for Ontarians to adequately operate and benefit from the justice system. Similar to physical accommodations, it is also important for the AODA to ensure that remote accommodations are set up appropriately.
Those who wish to access legal services, whether on-site or remotely, deserve to do so free of physical and other barriers. Since 2005, significant progress has been made to transform Ontario into a fully accessible and inclusive province. However, some issues remain to be addressed and resolved in the next three years. Can the province achieve its initial goal of being fully accessible by 2025?
[1] Lisa Kovac, “What is the AODA?” (2 October 2018), online: Accessibility for Ontarians with Disabilities Act <aoda.ca> [perma.cc/9DX8-4S4S].
[2] Accessibility for Ontarians with Disabilities Act, 2005, SO 2005, c 11.
[3] Ibid, ss 6(6)(a).
[4] See for example, Miriam Katawazi, “Ryerson’s student centre isn’t accessible for students with disabilities, advocate says”, Toronto Star (2 November 2017) online: <www.thestar.com> [perma.cc/H65L-C5D8].
[5] Supra note 2.
[6] Lisa Kovac, “Enforcing the AODA” (10 August, 2020), online: Accessibility for Ontarians with Disabilities Act <aoda.ca> [perma.cc/LC5X-QY85].
[7] Ibid.
[8] Lisa Kovac, “New AODA Requirement for Ontario Websites?” (2 November 2018), online: Accessibility for Ontarians with Disabilities Act <aoda.ca> [perma.cc/BS7V-N8TA].
[9] See for example Russell Alexander, “Refuting case for in-person court, point-by-point, part two”, The Lawyer’s Daily (31 May 2022), online: <www.thelawyersdaily.ca> [perma.cc/6BWK-VR5G].
[10] Houston et al, “Ontario family justice in “lockdown”: Early pandemic cases and professional experience” (2022) at 254, online (pdf): Family Court Review <journals-scholarsportal-info.ezproxy.library.yorku.ca> [perma.cc/N882-8CXA].
[11] Ibid.