First Reference Talks Blog: August

AODA administrative monetary penalties scheme – three strikes  you’re out!

Author: Suzanne Cohen Share

Posted on Wednesday, August 24th, 2011 at 09:00

threestrikes-baseball

The Accessibility for Ontarians with Disabilities Act (AODA)  allows for severe maximum monetary penalties for any violation to the Act. The  maximum penalties under the AODA include:

  • A person and unincorporated organizations that are guilty of a major offence  under this Act can be fined up to $50,000 dollars for each day the violation  continues
  • A corporation that is guilty can be fined up to $100,000 per day
  • Directors and officers of a corporation with fiduciary responsibility who  are guilty are liable to a fine of up to $50,000 a day

This said, to encourage compliance, the government has established an  administrative monetary penalties scheme that determines how and why an  individual or corporation might face a penalty or fine. The scheme was  established under Part V, Compliance, of the Integrated Accessibility Standards Regulation,  which came into force July 1, 2011.

The scheme allows a ministry director or a designate to issue an order  against a person, organization or corporation to pay a penalty amount as a  result of non-compliance with the AODA or any of the accessibility  standards.

These penalties and fines will depend on the severity and history of the  contravention. The director will determine the severity of the contravention by  ranking the contravention as minor, moderate or major.

  • A contravention of an administrative requirement is minor
  • A contravention of a requirement for organizational preparedness is  moderate
  • A contravention is major where it involves a priority requirement that  includes, but is not limited to, a contravention that may pose a health or  safety risk to persons with disabilities

The contravention history of the person or organization will be determined by  ranking it as minor, moderate or major in the following manner:

  • A contravention history is minor where there has been no more than one  previous contravention within the period of the current two reporting  cycles
  • A contravention history is moderate where there have been between two and  five previous contraventions within the current two reporting cycles period
  • A contravention history is major where there have been six or more previous  contraventions within the current two reporting cycles period

A reporting cycle is a 12-month period. The current two reporting cycles  period discussed above begins on the first day the person or organization must  file the accessibility report and ends on the last day before the next report  must be filed.  If a person or organization filed an accessibility report before  July 1, 2011, the two reporting cycles period is calculated from the first day  that the person or organization was required to file an accessibility  report.

For organizations and individuals that are exempt from the reporting  requirement, the two reporting cycles period consists of the 12-month period  that begins at the earliest of the following and ends at the end of each  12-month period:

  • The first day that a director requests reports or information from the  person or organization
  • The first day that an inspector requires a person or organization to produce  a document, record or thing
  • The first day that the person or organization receives or is deemed to have  received a notice of order under Act

So what are these escalating administrative penalties for  non-compliance?

The largest lump sum penalty amount that can be issued to an individual or an  organization that is not a corporation is $2,000 and the maximum for a  corporation is $15,000.  These maximum amounts can be issued per day. The  potential for daily amounts will be reserved for contraventions that fall within  the “major compliance history and major impact” category. Decision will be made  on a case-by-case basis with careful consideration of the circumstances before  an order for a daily amount is issued.

Table 1. Individuals or unincorporated  organizations
Impact of Contravention Major
(priority  requirement)
Moderate
(organizational  preparedness)
Minor
(administrative/  operational)
Major compliance history
(>6 previous  contraventions)
$2,000
(can be issued
per day)
$1,000 $500
Moderate compliance history
(2–5 previous  contraventions)
$1,000 $500 $250
Minor compliance history
(first  contravention)
$500 $250 $200
Table 2. Administrative penalties for  corporations
Impact of Contravention Major
(priority  requirement)
Moderate
(organizational  preparedness)
Minor
(administrative/  operational)
Major compliance history
(>6 previous  contraventions)
$15,000
(can be issued
per day)
$10,000 $5,000
Moderate compliance history
(2–5 previous  contraventions)
$10,000 $5,000 $2,500
Minor compliance history
(first  contravention)
$2,000 $1,000 $500

Thus, to be issued an order with the maximum penalty amount, the person,  organization or corporation must:

  • Have a compliance history that includes six or more previous contraventions;  and
  • The contravention must be a priority requirement of the accessibility  standard, as determined by the ministry

Persons and organizations that are facing a director’s order will receive  notice and will have an opportunity to make written submissions explaining the  non-compliance. The person or organization must submit a response within 30 days  after the order was made. A director’s review of the submission can result in  the decision to reduce or rescind the initial penalty amount. The decision to  reduce or rescind the initial penalty amount will be made on a case-by-case  basis, taking into account the explanation provided by the organization and  other factors such as steps taken to come into compliance and any economic  benefit derived from the contravention.

In the event a person or an organization appeals a fine, the Regulation  designates the Licence Appeal Tribunal to hear and determine the appeal.

If an organization fails to pay an administrative monetary penalty within the  time specified in the order (within 30 days after the order was made, unless the  order specifies a longer period), and makes no submission to the director, or  appeal to the designated tribunal, the order can be filed with a local registrar  of the Superior Court of Justice to be enforced like a civil court order.

Failing to comply with a director’s order is an offence under the AODA that  can be prosecuted.

The government is appearing to use a nurturing approach to ensure compliance.  The AODA has harsh maximum penalties but the Integrated Accessibility Standards  Regulation softens the blow with substantially lower monetary penalties before  the maximum penalties can occur.

I hope everyone is now clear on the approach a director will take to first  encourage compliance and then prepare to give the non-compliant organization  smaller monetary penalties. The initial penalties act as a reminder to  organizations that after two years the higher amounts may be rapidly  enforced.

This is just one of the tools directors may use to enforce compliance.  Directors can also issue general compliance orders.

We all have a lot of work to do to accomplish accessibility, but one thing is  clear: early recognition of the AODA allows organizations time to learn and plan  ways to meet legal obligations. By understanding your obligations now, you can  begin to draft your policies, practices and procedures, as well as your  accessibility plan. Then, you actually have to do what you promise to do in  those policies , practices and procedures and multi-year plans.

There is still a lot to talk about. Don’t forget to tune in for my next  post.

Suzanne Cohen Share
Access (SCS) Consulting Services

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