Monitoring and enforcement
Official title: Federal Accessibility Legislation - Technical analysis report
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The need for more effective monitoring and enforcement of accessibility legislation and regulations emerged as a major theme of the Consultations. For example, people often expressed frustration at complaint mechanisms they considered to be cumbersome, complex, time-consuming, resource-consuming, energy-draining, intimidating and legalistic.
As discussed below, there is consensus around the need for the creation of an independent office, commission or commissioner that would have the power to investigate specific complaints, monitor compliance at a national level, assess penalties for non-compliance and publically issue regular progress reports.
Online engagement
The need for more effective monitoring and enforcement of accessibility legislation emerged as a major theme of the Consultations.
The section of the questionnaire pertaining to gathering public input into monitoring and enforcement contained a relatively lengthy and detailed preamble, including the following descriptions of potential monitoring mechanisms:
- Action plans—the legislation could require organizations to submit action plans that would detail how they will improve accessibility and remove barriers for people with disabilities.
- Progress reports—the legislation could require organizations to periodically submit progress reports that would detail their progress in improving accessibility and removing barriers.
- Reviews and audits—the legislation could detail how action plans and progress reports could be verified through reviews, audits and/or inspections.
- Complaint mechanisms—the legislation could detail how Canadians could submit complaints concerning an organization that may not be meeting its obligations under the legislation.
In addition, respondents were informed that the legislation could also describe mechanisms to address issues of non-compliance, such as:
- an informal or formal mediation process to address compliance issues;
- public reporting of organizations that are non-compliant;
- orders that detail an organization’s areas of non-compliance and give a timeframe for the organization to become compliant; and/or
- monetary penalties.
Question: What monitoring mechanisms do you think should be considered for the legislation (including ones not listed here)?
This question received a total of 1,235 responses.
Each of the four potential monitoring mechanisms described in the question preamble were supported by close to half or more of the comments. Analysis also reveals that while some approaches were favoured over others, the overall thrust of the comments is that these mechanisms would be used in combination:
A combination of Action Plans, Progress Reports, Reviews and Audits, as well as improved and clear complaint mechanisms should be combined and enacted upon.
– Anonymous
As shown in Figure O, two mechanisms 1) reviews and audits and 2) complaints mechanisms were most often suggested.
Monitoring compliance through reviews and audits was seen as having two benefits. First, compared to action plans and progress reports, this approach is less subjective and more rigorous. Many also like the idea of monitoring being conducted by “an objective third party.”
Text description of Figure O:
| Responses | % |
|---|---|
| Reviews and audits | 64% |
| Complaints mechanisms | 58% |
| Progress reports | 46% |
| Action plans | 45% |
| Suggested an enforcement mechanism (e.g., monetary penalties, public reporting of non-compliance) | 17% |
| Focus on preventative tools (to help people comply, e.g., education) | 8% |
| Other | 5% |
| I don’t know | 6% |
Complaint mechanisms were thought by many to have an important role in monitoring. Those who provided supporting rationale often emphasized that complaint mechanisms needed to be user-friendly; more specifically, that the process be “simple,” “straightforward,” timely and without much “paperwork.” Some also noted that the process should be designed in a way that protects complainants from intimidation and harassment:
The complaint mechanism needs to be very very clear and very very accessible to allow the most vulnerable members of our community to still access it without trouble.
– Anonymous
One of the points that was most often made about action plans and progress reports was that they should not serve as a substitute for action:
Minimize paperwork. There are already so many reports and action plans required (official languages, multiculturalism) -- the focus should be on achieving results. The best way to track is by periodic reviews and audits, as well as a robust complaint mechanism.
– Anonymous
A number of commenters noted that actions plans and progress reports would be more effective if individuals were made accountable, not just the organization:
… monitoring and compliance mechanisms must include individual performance of managers, HR professionals and institutions and must be based as much on individual results as on the “numbers game” of Employment Equity targets. It is not enough that an institution has 4% Persons with Disabilities in its employee population – it and its managers must still be accountable for not discriminating on an individual basis and for implementing policies that ensure that some disabilities are given more access than others…
– Chris Ram, Counsel, Canada Department of Justice
Question: What enforcement mechanisms do you think should be considered for the legislation (including ones not listed here)?
This question received a total of 1,115 responses.
The results presented in Figure P reveal a number of things. First, we see that monetary penalties were mentioned in a majority of comments. Second, we note that all four of the enforcement mechanisms identified in the question preamble were included in at least one third of comments. Lastly, we find that two other suggestions were made by a significant number of people: the use of criminal charges and the revocation of licences or permits.
Text description of Figure P:
| Responses | % |
|---|---|
| Monetary and other penalties (e.g., fines) | 58% |
| Mediation, training and other “soft” methods to help ensure compliance | 39% |
| Public reporting of non-compliance | 39% |
| Orders that describe non-compliance and give timeframes for compliance | 38% |
| Criminal charges | 27% |
| Revoking permits/licenses | 27% |
| Suggested a monitoring mechanism (e.g., audits, complaints mechanisms) | 9% |
| Other | 5% |
| I don’t know | 9% |
As with respondents’ discussion of monitoring mechanism, the analysis suggests that there is an expectation that a range of “escalating” enforcement mechanisms would be used, from warnings, training and mediation at the start to monetary fines and criminal charges as a last resort:
- Monetary penalties were viewed as likely to be effective, as long as the amounts were meaningful. Sub-group analysis also indicates that support for this mechanism was significantly less likely to be found in the comments provided by representatives of an organization/institution.
- Public reporting of non-compliance was seen as potentially very effective. Respondents indicated that “public shaming” of organizations, for example through social media, has worked to create change. Some also pointed out that the public dimension would also help to raise awareness among the population as a whole, and serve as a deterrent.
- Orders that describe non-compliance and provide a timeframe to become compliant. This approach was seen as a necessary part of any effective enforcement regime. Some respondents, however, added the suggestion that such order be made public in order to raise awareness, create a deterrence effect and help to ensure accountability and follow-through.
- Mediation, training and other “soft” methods. Mediation and other more cooperative approaches were often described as an important initial step for enforcing compliance. This approach was seen as particularly relevant early in the life of the legislation, as part of an awareness building and adjustment phase. In the same vein, many spoke of the importance of “training,” as well as other ways of helping organizations comply.
Education is a part of compliance. Some people are just unaware of disabilities. As a person who uses a wheelchair I've asked places if they are wheelchair accessible but give a response "yes it's wheelchair friendly" but when pressed about the accessibility they say "we only have two stairs". More technology driven monitoring or surveillance coupled with enforcement.
– Ashton Campbell
I think it would be realistic to have a phase-in period for organisations to become compliant once the Bill is passed as law, and a gradual escalation process for organisations that are cited for non-compliance; beginning with informal mediation with a time period to become compliant, if the organisation fails to conform to regulations after the set time period (without a reasonable rationale) then have their organisation information posted/reported publicly with formal mediation and an order detailing areas of non-compliance with a secondary deadline to remedy the identified problems. If no actions are taken (without a reasonable rationale) to comply with the regulations then penalties could be leveraged (whether they are in the form of fines, revocation of Charitable Status, etc.).
– Alena Wickware
- Many of the comments coded under the “Other” category included the suggestion that the position of commissioner or ombudsperson be created:
The monitoring mechanisms outlined above, are appropriate. It might also be useful to have a Commissioner or Ombudsman responsible for overseeing compliance with the accessibility legislation and to also be a spokesperson to address complaints and advocate for Persons with Disabilities.
– Anonymous
The Canadians with Disabilities Act must be more than mere window dressing. It should contribute meaningfully to the improvement of the position of persons with disabilities in Canada. It must have real force, effect and teeth. I have already addressed the importance of oversight and enforcement and suggested that the creation of an independent, third party body would be appropriate. It is imperative that this body be provided with legislated powers to ensure and encourage compliance to the CDA.
– Anonymous
Public sessions
Participants in almost half of public sessions called for significant improvements to be made to current complaints mechanisms. In Whitehorse, attendees asked the Government to consider a broader role for human rights commissions. Many participants suggested the creation of a new independent commission or office that would assess the merits of a complaint, and then pursue the matter on behalf of the complainant(s): “The complaints mechanisms [in new accessibility legislation] should not require individuals to bring forward their own complaints. There should be proactive monitoring and enforcement. An office is needed to carry out this function; however, it must be adequately resourced. The office for AODA is underfunded, understaffed, and dis-empowered, so that it is unable to provide proper guidance to organizations to support compliance. Organizations are required to spend their own money to learn how to meet the regulations. Adequate enforcement is needed; self-reports are not enough.”
Other participants suggested the creation of a position or office that would serve as a “watch dog.” In contrast to the reactive model described above (for example responding to a complaint), the watch dog approach would involve proactive compliance monitoring and enforcement of the legislation: “We need a prescriptive approach to standards and a watch dog. We need one watchdog for this, not [many] spread across different agencies and departments to monitor, and add bureaucracy.”
Many participants spoke about penalties and incentives. Everyone agreed that both should be used: “Use carrots and sticks in legislation – provide incentives to businesses that comply with legislation and penalize those that do not to enforce acceptance.” But there was also concern expressed, based on experience, that monitoring, enforcement and penalties would be too light to have a significant impact. As a way of preventing this, some suggested that penalties for non-compliance should be built into the legislative framework.
Some participants, notably in Toronto, indicated that the current model of settling complaints with non-disclosure agreements does not allow for the sharing of best practices or promote awareness that non-compliance has consequences: “It should be possible to get a settlement and still disclose results of complaints procedures in public so that others know there are consequences to their non-compliance.”
National Youth Forum
The National Youth Forum participants agreed that a strengthened and simplified way of dealing with accessibility complaints was needed in Canada. Consistent with the views expressed in the public roundtables, youth suggested that Persons with Disabilities should be able to deal with a single point of contact.
Thematic roundtables
The most prevalent suggestion from these roundtable discussions was that periodic accessibility audits should be conducted, and that these audits needed to be carried out by an “objective third party,” such as the Auditor General: “Use the office of the Auditor General to examine compliance with the federal accessibility legislation across government departments and agencies.” It was also suggested that data on current attitudes of various publics towards people with disabilities will help to identify clear objectives for a culture change strategy (example: review/synthesis of existing data, filling gaps).
Moving from monitoring to enforcement, there was support for a combination of incentives and penalties. Some also suggested that it was important to ensure that new builds were designed and costed to be fully accessible, in order to improve access for Persons with Disabilities and avoid the expense and complexity of retrofitting.
The issue of transparency was also raised by the roundtables in Saskatoon and Moncton. Participants suggested that the results of monitoring and enforcement be made public. Participants in Saskatoon called for there to be “public transparency through mandatory monitoring and published public reporting.”
Stakeholder submissions
Analysis of stakeholder submissions reveals a significant amount of dissatisfaction with the way in which accessibility legislation has been monitored and enforced in the past.
Looking to the future, many advocacy and labour groups suggested that the current patchwork of mostly ineffectual complaints/redress mechanisms be replaced by a new commission or office that would monitor compliance and enforce the legislation. For example, Barrier Free Canada recommended that: “There should be one federal agency for all federal accessibility standards and enforcement, the new Canada Accessibility Commissioner.”
In its submission, Accessible Housing (AH) suggested an outcome-based approach, coupled with strong oversight and effective enforcement: “outcomes-based approach, with a robust compliance mechanism that is pro-active, rather than reactive.”
Industry stakeholders varied widely in their recommended approaches to monitoring and enforcement. Some, like Air Canada, recommended independent, expert, third-party commissions to help standardize across industries. While others (example: Microsoft), who would be less likely to be subject to new Canadian accessibility legislation, recommended a voluntary approach: “We have found voluntary self-declaration of conformance to be an effective means for industry to demonstrate the accessibility of products and services. Self-declaration allows companies to maintain up-to-date, detailed conformance reports, which are more accurate and informative for purchasers than one-time, third-party pass/fail assessments.”
The Canadian Bankers Association submission addressed the issue of complaints mechanisms, calling for a centralized approach:
It is important that the federal accessibility framework avoid providing multiple avenues of redress for complainants. Concurrent complaints under federal accessibility legislation and another mechanism, such as the Canadian Human Rights Act, would require the respondent to address the complaints through separate forums with the possibility of inconsistent outcomes. For example, it would be duplicative and problematic if an accessibility complaint could be made to the Canadian Human Rights Commission as a complaint relating to the duty to accommodate and under a separate process established under the federal accessibility legislation.
– Canadian Bankers Association Submission
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