Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8750/AODA
CASE NAME: 8750 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
Lafleur Restaurants Limited (102933686) 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: Augusto Palombi, Counsel, 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 3, 2014 requiring Lafleur Restaurants Limited. (102933686), hereafter referred to as “Lafleur”, 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. Lafleur filed its accessibility report on February 20, 2014. Lafleur requested a review of the order. The Director’s varied order was issued on March 26, 2014. The order to pay the $2,000 administrative penalty remained in place, with an extension of time to pay it. Lafleur then filed an appeal of the varied order.
In the Notice of Appeal, Lafleur states that upon receipt of an ADO request to file an accessibility report, Mr Cavaliere, the principal of Lafleur, directed its bookkeeper to file the report by the November 2013 reporting date. This was not done. Mr Cavaliere states that it was not until receipt of the order in early February that he became aware of that fact. He immediately took steps to file the report. Lafleur also states in its Notice of Appeal that it has been compliant with accessibility requirements for a significant period of time. Non-compliance with reporting requirements was the result, it states, of mere inadvertence.
Pursuant to the Act, the Tribunal requested written submissions from the parties, which were to be completed by June 26, 2014. The Tribunal notes that the Director did not file reply submissions though given the opportunity to do so.
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. Lafleur 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 Lafleur regarding the requirement to file an accessibility report in November 2012 and January/February 2013, with a final notice letter sent on September 6, 2013. The ADO also asserts that after that September 6th notice letter, Lafleur initiated, but did not complete the accessibility report. Lafleur does not dispute its obligation to comply with the Act, and points out that the report was filed promptly upon receipt of the order of February 3, 2014. Further, Lafleur acknowledges that it was aware of the obligation to file in the fall of 2013, though Mr. Cavaliere does state that he does not recall receiving the Notice of Proposed Order dated November 28, 2013. The Tribunal accepts the ADO submission that the notice was properly served. The Tribunal also accepts that Mr. Cavaliere believed that the report was underway and duly filed as he had given instructions to his employee to do so. His prompt action in filing the report immediately upon receipt of the Director’s order supports that assertion.
The ADO, in setting the administrative penalty at $2,000 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. The Tribunal in previous decisions has emphasized the fact that accessibility is the focus and priority of the Act. Lafleur submits that it has always ensured that its premises are accessible to all members of the public and that its staff are properly trained. That may well be, but the ADO can only monitor compliance with the obligations set out in the Act when an organization files its accessibility report. That reporting is a key mechanism by which the ADO measures compliance.
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 20, 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.
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 and notes that this is a characterization which Lafleur, in its submissions, concedes.
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. Mr. Palombi submits that Lafleur has no previous infraction under the Act. 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.
The Director determined that the contravention history is minor and that the appropriate monetary penalty flowing from the “major” impact and “minor” contravention history was $2,000. Mr. Palombi, in submissions, is prepared to accept a characterization as a “minor” contravention history, which when calculated with the “minor” impact would lead to a $500 administrative penalty according to the regulation. Lafleur’s acknowledgment of its obligations under the Act and, at this point, its adherence to the self-reporting requirements under the Act and its apparent acceptance of responsibility for not filing its report in a timely manner, is to be commended. Compliance with the reporting requirement has been achieved; a $2,000 administrative penalty is excessive in these circumstances. Whether or not, on these facts, the Tribunal characterizes the contravention history as “minor”, having decided that the impact of the contravention is “minor”, the schedule does provide guidance regarding the appropriate penalty amount. The Tribunal determines that $500 is the appropriate administrative penalty.
ORDER
Therefore, the Tribunal, pursuant to its authority under the Act, varies the Director’s order. Lafleur 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 22, 2014