Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014-07-14
FILE:
8677/AODA
CASE NAME:
8677 v. Director under the Accessibility for Ontarians with Disabilities Act, 2005
Appeal from the Order of the Director under the Accessibility for Ontarians with Disabilities Act, 2005
Echoworx Corporation
Appellant
-and-
Director under the Accessibility for Ontarians
with Disabilities Act, 2005
Respondent
DECISION AND ORDER
ADJUDICATOR:
Patricia McQuaid, Vice-Chair
APPEARANCES:
For the Appellant:
Harry Enchin, Agent,
For the Respondent:
Kevin Lockwood, Agent, by written submissions
DECISION AND ORDER
BACKGROUND
A Director of the Accessibility Directorate of Ontario, (the “Director” or the “ADO”) issued an order dated February 28, 2014 requiring Echoworx Corporation (“Echoworx”) to file an accessibility report under s. 14 of the Accessibility for Ontarians with Disabilities Act (the “Act”) and to pay an administrative penalty in the amount of $2,000 under s. 21(3) of the Act, all within 30 days of the order. Echoworx has appealed that order to this Tribunal. The Notice of Appeal was received by the tribunal on March 11, 2014. The ADO has advised that the accessibility report was filed on March 21, 2014.The issue of the administrative penalty remained outstanding. The Notice of Written Hearing was sent to the parties on April 7, 2014. The Notice sets out the timelines for submissions, pursuant to the Act. The Director was to provide its submissions by May 7, and by June 6, Echoworx was to provide its submissions.
The Director’s submissions were received on May 7, 2014. In early June, Tribunal staff was advised that Echoworx had in fact paid the administrative penalty (as confirmed by the ADO on June 26), but that it was not withdrawing its appeal and would make no further submissions beyond that contained in its Notice of Appeal.
In the Notice of Appeal, Echoworx states that the person who was to file the report was no longer with the company. They did not receive all the reminders and believed that the file had been completed.
The Act provides that the Tribunal may confirm, vary or rescind the order of a director.
DECISION
After reviewing the parties’ submissions, the Tribunal has decided to vary the order. The administrative penalty shall be $500. Reasons for this decision follow.
LEGISLATIVE FRAMEWORK
In order to understand the issues in this appeal, it is essential to look to the obligations set out in the legislation. In the context of this appeal, the Tribunal focusses on the stated purpose of the Act: to develop, implement and enforce accessibility standards in order to achieve accessibility for Ontarians with disabilities with respect to goods and services.
Section 14 of the Act states as follows:
Accessibility report
- (1) A person or organization to whom an accessibility standard applies shall file an accessibility report with a director annually or at such other times as the director may specify.
As of January 1, 2012, prescribed organizations were required to file reports.
Regulation 429/07 establishes accessibility standards for customer service. It applies to “...every organization that provides goods or services to members of the public or other third parties and that has at least one employee in Ontario”.
Regulation 430/07 provides for exemptions from reporting requirements. It states as follows:
Re: accessibility standards for customer service
- (1) Every provider of goods or services that has fewer than 20 employees, other than a designated public sector organization, is exempted from the requirement to file accessibility reports under section 14 of the Act with respect to the accessibility standards for customer service established by Ontario Regulation 429/07 (Accessibility Standards for Customer Service) made under the Act.
(2) The following are the reasons for this exemption:
It is consistent with a phased approach to implementing the Act.
It allows the exempted providers of goods or services to focus their efforts and resources on complying with those accessibility standards.
(3) In this section, “designated public sector organization” and “provider of goods or services” have the same meaning as in Ontario Regulation 429/07.
Finally, and in reference to this appeal, Regulation 191/11 sets out, at section 83, the rules which guide the ADO in determining the amount of the administrative penalty. The relevant provisions are as follows:
Amount of administrative penalty
(1) For the purposes of paragraph 3 of subsection 21 (3), paragraph 2 of subsection 21 (4), subsection 21 (5) and paragraph 2 of subsection 33 (8) of the Act, a director shall determine the amount of the administrative penalty according to the following rules:
The director shall determine whether, in his or her opinion, the severity of the impact of the contravention is of a minor, moderate or major nature.
The director shall determine the contravention history of the person or organization over the current two reporting cycles period.
The director shall determine whether the person or organization is a corporation or an individual or unincorporated organization.
Based on the determinations made in accordance with paragraphs 1, 2 and 3, and subject to paragraph 5, the director shall determine the amount of administrative penalty using Schedule 2, in the case of an individual or unincorporated organization, or Schedule 3, in the case of a corporation.
(2) For the purposes of paragraph 1 of subsection (1), the severity of the impact of the contravention shall be determined by ranking the contravention as minor, moderate or major in the following manner:
A contravention is minor where it involves the contravention of an administrative requirement.
A contravention is moderate where it involves the contravention of a requirement for organizational preparedness.
A contravention is major where it involves the contravention of a priority requirement that includes, but is not limited to, a contravention that may pose a health or safety risk to persons with disabilities.
(3) For the purposes of paragraph 2 of subsection (1), the contravention history of the person or organization shall 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 current two reporting cycles period.
A contravention history is moderate where there has been between two and five previous contraventions within the current two reporting cycles period.
A contravention history is major where there has been six or more previous contraventions within the current two reporting cycles period.
The regulation provides a schedule by which an administrative penalty is then calculated.
ADMINISTRATIVE PENALTIES FOR CORPORATIONS
Impact of Contravention:
Major
Moderate
Minor
Contravention History:
Major
$15,000
$10,000
$5,000
Moderate
$10,000
$5,000
$2,500
Minor
$2,000
$1,000
$500
O. Reg. 191/11, Schedule 3
ANALYSIS
In submissions, the ADO states that it sent letters to Echoworx to alert them to the requirement to file an accessibility report in November 2012 and January 2013, with a final notice letter sent on September 6, 2013. The ADO also asserts that after that September 6th notice letter, Echoworx initiated its accessibility report on September 11th, but did not complete it at that time. A Notice of Proposed Order was issued on November 28, 2013 wherein the ADO states that the organization (Echoworx), must file its overdue report within 30 days of receiving the notice. This notice appears to have been delivered on December 2, 2013. In submissions, the ADO states that Echoworx contacted it on December 3, 2013 at which time Echoworx was told that its accessibility report was not complete.
As noted above, in the Notice of Appeal, Echoworx asserts that it thought that the filing had been completed; however, at a minimum, Echoworx was aware, as of December 3, of its obligations and that the required report was not complete. Its “defence” of staff issues, even if accepted, is less valid at this point. The Tribunal agrees with the ADO submission that the obligation to file a report exists regardless of staffing changes.
As of February 19, 2014, the ADO had still not received the report and therefore, as stated in its submissions, called Echoworx on that date to inform it that a Director’s Order would be issued in 48 hours if the report was not filed. The order was issued on February 28. At that point, Echoworx appeared to have, finally, appreciated its delay and the need to respond promptly; the report was filed on March 21, 2014.
The Director determined, when setting the amount of this administrative penalty, that filing a report is a priority requirement and failure to file is a “major” contravention. However, the specific wording of section 83 (1) requires the Director to determine if the severity of the impact is minor, moderate or major in nature. Subsection 83(2)1 states that a contravention is minor where it involves the contravention of an administrative requirement.
The filing of a report, even in the context of a self-reporting regime, may be considered an administrative requirement. This conclusion is reinforced by the fact that for smaller organizations in particular, the legislature determined that a provider of goods and services with fewer than 20 employees need not file a report because it ”allows the exempted organization to focus efforts on complying with the accessibility standards”. It is accessibility which is the focus and priority of the Act. The reporting is a mechanism by which to measure that.
A “major” contravention is described at s. 83(2)3 as one which involves the contravention of a priority requirement that includes, but is not limited to, a contravention that may pose a health or safety risk to persons with disabilities. There is no suggestion of that kind of risk here. Further, the ADO has now had the accessibility report since March 21, 2014, presumably with the opportunity to review it and address any shortcomings it may present. The ADO, in its submissions, has not taken issue with the form or content of the report. Nor has it asserted that the failure to file the report within the time frame required posed a “moderate” risk as defined in the legislation, that is, that there was a contravention of a requirement for ‘organizational preparedness.
The Tribunal has closely examined this section of the regulation and the scale of the described contraventions between minor and major. It cannot conclude that a failure, on these facts, to file a report for the 2012 reporting period in a more timely manner, is a “priority” requirement so as to bring it within the ambit of a contravention that might pose a health or safety risk to persons with disabilities or cause any risk or consequence that could be seen as “major”. The Tribunal finds that this contravention, on a plain reading of the legislation, was in fact a minor one.
The second step in determining the amount of the fine is to look at the contravention history over the “current two reporting cycles”. There has been only one reporting cycle. This is the first contravention. Therefore, the Director determined that the contravention history is minor. The Tribunal does not accept the Director’s position on this point. There has been no “previous contravention” as per s. 83(3)1. The contravention for which the penalty is being administered is the same contravention that the Director submits gives rise to a history. On reviewing the language of the regulation, and given that this is the first reporting cycle, the Tribunal cannot conclude that there is a “history”.
This determination of “no history” puts the amount of the penalty outside of the calculation prescribed in Schedule 3. However, it does not flow that no penalty amount can be levied. Under s. 27(7) of the Act, the Tribunal is given broadly worded jurisdiction on appeal, to “confirm, vary or rescind an order of the director”, without reference to prescribed amounts. As noted above, there was a contravention of a minor impact. The system of administrative penalties, at a minimum, is a compliance tool. The ADO did communicate with Echoworx, both by letter several times prior to issuance of its Notice of Proposed Order and by telephone before issuance of its final Order. Its efforts to alert the organization to the need for compliance prior to this final step are commendable and the Tribunal appreciates that there may be a level of frustration for the ADO when it was only upon service of the order of February 28, 2014 that Echoworx responded. At that point, the report is overdue. Management was given the opportunity to respond on several occasions but failed to do so in a more timely way.
The Tribunal accepts the premise that to ensure compliance with this important legislative initiative, self-reporting is a key component. Administrative penalties are important compliance tools. The context of this appeal is a minor contravention at the first phase of reporting obligations for an organization which has in the intervening period, filed its report three weeks after the order was issued. In this situation, a $2,000 administrative penalty is excessive. The requisite compliance has been achieved, and it should be anticipated the importance of that reporting requirement is now fully understood.
The Tribunal notes that pursuant to the schedule for calculation of the amount of a penalty, as set out above, the penalty would be $500 if the Appellant had a previous contravention. Here, the Tribunal has found that the facts before it do not fall within the parameters of that schedule. However, the schedule does provide some guidance regarding the appropriate penalty amount. Although the Tribunal may have the authority to set an amount below $500, on these facts, the Tribunal finds no compelling reason to do so. Therefore, the Tribunal determines that the appropriate administrative penalty is $500.
ORDER
Therefore, the Tribunal, pursuant to its authority under the Act, varies the order. An administrative penalty in the amount of $500 is due under the Director’s Order.
LICENCE APPEAL TRIBUNAL
Patricia McQuaid, Vice-Chair
Released: July 14, 2014