Large Federally Regulated Organizations Have Until June 1, 2023, to Publish Accessibility Plan

Federally regulated organizations with more than 100 employees must publish their first accessibility plan by June 1, 2023. Those with fewer than 100 employees have until 2024 to comply with this new obligation under the Accessible Canada Act (ACA), unless an exemption applies.

The ACA came into force in 2019 and contains an overarching goal to realize a barrier-free Canada by 2040. The ACA requires regulated entities to prepare and publish accessibility plans, set up feedback processes and report openly on progress.

In this bulletin, we summarize the key requirements for an accessibility plan and provide tips for ensuring your organization complies on time.

WHO NEEDS AN ACCESSIBILITY PLAN?

The ACA applies to any person, partnership or unincorporated organization that operates a work or carries on an undertaking or business that is within the legislative authority of Parliament, other than a work, undertaking or business of a local or private nature in the territories, as well as to the federal government and federal Crown corporations. This means that banks, airlines, interprovincial and international transportation companies, and the broadcasting and telecommunications sectors are all subject to the ACA.

Telecommunications and broadcasting undertakings and regulated transportation companies with fewer than 10 employees are exempt from the requirement to publish an accessibility plan. Telecommunications service providers whose services are specifically limited may also be exempt. All other telecommunication service providers and broadcasting undertakings are required to comply.

On February 2, 2022, the Government of Canada introduced Bill C-11 (see our March 2022 Blakes Bulletin: Bill C-11: A Proposal to Regulate Online Streaming Platforms), referred to as the Online Streaming Act. If Bill C-11 passes into law as currently drafted, it will amend the definition of “broadcasting undertaking” to include “online undertakings.” The latter term would encompass many streaming service providers and social media platforms. As a result, these undertakings would be subject to the ACA, but Canadian Radio-television and Telecommunications Commission (CRTC) regulations provide for a grace period for compliance.

WHAT ARE THE RISKS OF NON-COMPLIANCE?

The Accessibility Commissioner enforces the ACA and has a range of tools to ensure that organizations meet their obligations, including inspections, compliance orders, notices of violation and compliance agreements. Under the ACA, notices of violations can be issued setting out a warning or requiring an organization to pay a penalty of up to C$250,000 per violation.

The CRTC and Canadian Transportation Agency (CTA) are also responsible for enforcing the ACA in respect of their areas of jurisdiction. The enforcement powers of the CRTC and CTA may be applied concurrently to the Accessibility Commissioner. This means that some federally regulated organizations, such as telecommunications companies, are subject to regulation by both the Accessibility Commissioner and a sector-specific regulator like the CRTC. These entities are not required to prepare two accessibility plans but instead can prepare one plan that meets all applicable requirements.

WHAT SHOULD THE ACCESSIBILITY PLAN ADDRESS?

The ACA requires that organizations prepare and publish accessibility plans respecting policies, programs, practices and services in place to identify, remove and prevent barriers. A “barrier” is defined under the ACA to mean anything that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation. The accessibility plan must relate to the areas described in Section 5 of the ACA:

• Employment

• The built environment

• Information and communication technologies (ICT)

• Communication, other than ICT

• The procurement of goods, services and facilities

• The design and delivery of programs and services

• Transportation

 The ACA also sets out seven principles organizations must consider in the development of the accessibility plan, including:

1. All persons must be treated with dignity regardless of their disabilities

2. All persons must have the same opportunity to make for themselves the lives that they are able and wish to have regardless of their disabilities

3. All persons must have barrier-free access to full and equal participation in society regardless of their disabilities

4. All persons must have meaningful options and be free to make their own choices, with support if they desire, regardless of their disabilities

5. All policies, programs, services and structures must take into account the disabilities of persons, the different ways that persons interact with their environments, and the multiple and intersecting forms of marginalization and discrimination faced by persons with disabilities

6. Persons with disabilities must be involved in the development and design of policies, programs, services and structures

7. The development and revision of accessibility standards must be done with the objective of achieving the highest level of accessibility for persons with disabilities

Regulated entities are required to consult persons with disabilities in the preparation of the accessibility plan. There are no prescribed requirements for these consultations and will vary based on the resources, needs and capabilities of the organization. However, consultations should be designed to be accessible and inclusive by default.

Accessibility plans must be drafted using plain language that is simple, clear and concise. The ACA and regulations made under the Act require that the accessibility plan include information about how employees, clients, members of the public and others can contact the organization, how the organization consulted persons with disabilities in the preparation of the accessibility plan and the organizations policies, programs, practices and services in relation to the identification and removal of barriers and the prevention of new barriers.

HOW SHOULD AN ACCESSIBILITY PLAN BE PUBLISHED?

Regulated entities must publish their accessibility plan on their main digital platform in a format that meets the web accessibility requirements of WCAG 2.0 at Level AA or make the plan available at their offices if there is no digital platform. Regulated entities must notify the Accessibility Commissioner (and, if applicable, the CRTC or CTA as well) within 48 hours of publishing the plan and provide the address of where the accessibility plan is located.

ADDITIONAL TIPS FOR COMPLYING WITH THE ACA

Regulated entities have to provide individuals with a copy of the plan, by request. Organizations will need to provide the individual with a copy within 45 days of receiving the request if in Braille or audio format, 15 days for all other format requests if you have 100 or more employees, or 20 days for all other format requests if you have 99 or less employees.

Accessibility plans must be reviewed and updated every three years. Additionally, organizations must publish a progress report on the implementation of the accessibility plan, including information of feedback received every year. Further, regulated entities must keep copies of the accessibility plan for at least seven years.

For more information, please contact:

Ellie Marshall              +1-416-863-3053
John Lenz                    +1-514-982-6308