Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014-07-14
FILE:
8647/AODA
CASE NAME:
8647 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
Metaris Inc.
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:
Ted Brohman, Agent, by written submissions
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 11, 2014 requiring Metaris Inc. (“Metaris”) 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. Metaris has appealed that order to this Tribunal. In addition to filing the appeal, Metaris also requested a Director’s review of the order. The accessibility report was filed on February 26, 2014. The Director’s review resulted in a varied order, dated March 17, 2014, whereby an extension of the time period for payment of the $2,000 administrative penalty was granted, from 30 to 45 days. The varied order is the subject of this appeal.
In the Notice of Appeal, Metaris states that it went through a sale in the latter part of 2012, with management changes, resulting in a delay in compiling the information required to complete the report. Further, Metaris asserts that it was not aware of the requirement to file a report until late 2013. However, efforts were then made to gather the necessary information and ultimately the report was filed by the end of February 2014. In addition, Metaris states that the business is not open to the public; therefore, there is no major impact arising from this contravention. Given that it has filed the report, Metaris requests that the penalty be waived.
Pursuant to the Act, the Tribunal requested written submissions from the parties, which were completed on June 24, 2014. The Tribunal notes that Metaris’ only submission was a copy of a news release, dated September 7, 2012 announcing the acquisition of Metaris by Hydraulex Global.
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. Metaris shall pay an administrative penalty in the amount of $500, within 30 days of this order. 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 Metaris, presumably regarding the requirement to file an accessibility report, in November 2012 and January 2013, with a final notice letter sent on September 13, 2013. The ADO also asserts that after that September 13th notice letter, Metaris initiated, but did not complete the accessibility report. This would appear to contradict Metaris’ assertion in its letter to the ADO in November 2013 that it just learned of the requirement in the latter part of 2013. Metaris does not, however, dispute that it is obliged to comply with the Act. The Tribunal is prepared, based on the evidence before it, to conclude that Metaris knew or ought to have known of its obligations under the Act in the early fall of 2013 at the latest. This is not the case of a small organization, with limited resources to navigate a new statutory regime. Metaris is a global provider of hydraulic and power transmission components. It may well have been undergoing a major corporate restructuring, but that is not, in these particular circumstances, a mitigating factor when considering the penalty.
What does carry weight for the Tribunal is that upon receipt of the Notice of Proposed Order in late November 2013, the Appellant appeared, at that point, to exercise diligence in ensuring that the accessibility report was filed within a short time frame.
The ADO position, as stated in its submissions, is that the Act and its standards rely on self-reporting for compliance; the only way it can monitor compliance is through an organization’s filing of the accessibility report. The ADO has determined 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 February 26, 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”. The ADO states that 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. Metaris, in its Notice of Appeal, states that it does not have a history of prior contravention. The Tribunal agrees: 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 Metaris, by letter, several times prior to issuance of its Notice of Proposed Order. There is understandably a level of frustration for the ADO when it was only upon service of the order of February 11, 2014 that Metaris responded. At that point, the report is overdue. It is insufficient to assert that management was unable to deal with this statutory requirement because it was otherwise occupied with a major corporate restructuring. Further, the fact that customers do not go beyond the company’s pick up area does not minimize the importance of reporting requirements.
However, Metaris did respond, albeit tardily, on February 25, 2014, with a clearly stated intention to comply by month’s end, which it did. The fact that it was so quickly able to file that report does lend credence to Metaris assertion that preparation of the report was underway as of January 2014.
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 two 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 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, there is no need to reduce the penalty to what would essentially be a relatively small amount for a company of this size. Therefore, the Tribunal determines that the appropriate administrative penalty is $500.
ORDER
Therefore, the Tribunal, pursuant to its authority under the Act, varies that order. Metaris is to pay an administrative penalty in the amount of $500 within 30 days of this order.
LICENCE APPEAL TRIBUNAL
Patricia McQuaid, Vice-Chair
Released: July 14, 2014