Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2014-06-26
FILE:
8635/AODA
CASE NAME:
8635 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
J&A Creative Services 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:
John Roxon, 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 13, 2014 requiring J&A Creative Services Inc. (“J&A”) 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. J&A has appealed that order to this Tribunal. In addition to filing the appeal, J&A also requested a Director’s review of the order. That 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.
The grounds of appeal set out in the Notice of Appeal are threefold. First, the Director’s Order was the first notice of the penalty. Previous notices should have been sent by registered mail. Second, J&A is an internet-based business and has no customers entering the premises. Third, J&A has fewer than 20 employees.
Pursuant to the Act, the Tribunal requested written submissions from the parties, which were completed on June 4, 2014. 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. J&A shall pay an administrative penalty in the amount of $250, and file the accessibility report (if not already filed), 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 emailed J&A 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, J&A initiated, but did not complete the accessibility report. The inference can be drawn that J&A was, as of that date, aware of the requirement to file a report. J&A does concede in its submissions that in 2012, the first relevant time period, it did have 24 employees.
A Notice of Proposed Order (the “Notice”) was sent to J&A by registered mail. The Notice was dated November 28, 2013 and was delivered on December 2, 2013 according to the ADO submission, and signed for by an employee of J&A. Receiving no response to the Notice, the final Order was issued on February 13, 2014, sent by registered mail and was also signed for by an apparent representative of J&A.
J&A does not dispute that the notices were delivered, but takes issue with the fact that the important nature of the documents was not highlighted in such a way that they were then directed to the attention of the principal of J&A. The Tribunal accepts that delivery of the Notices by registered mail was sufficient. The ADO was entitled to assume by successful delivery of the document that an appropriate person within the organization would be advised.
J&A does assert that it is an internet-based business; no customers enter its premises. However, it seems it was prepared to submit a report though it was not completed, and in submissions stated that had the principal been made aware of the requirement at the relevant time, it would have completed the report in a timely way. It does not dispute that it does provide goods or services to the public in some form. The Tribunal accepts, for the purposes of this appeal, that the company fell within the ambit of the legislation in 2012.
In its submissions, J&A does state that it is appealing the fine portion only. The Tribunal will address that issue next.
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 (emphasis added) 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.
On its face, 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.
J&A was subject to the reporting requirement in 2012 with 24 employees. That number has been reduced to 16 currently. No information has been provided to the Tribunal regarding the number of employees in 2013; it may or may not have been required to report. In 2014, it would not. It is the 2012 time frame which is before the Tribunal. However, the diminishing number of employees (and the consequent exemption that would flow to the organization) is a mitigating factor when assessing the extent to which this contravention might be considered to be “major.” 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. A “moderate” risk is defined in the legislation as one which involves the contravention of a requirement for organizational preparedness. The ADO has not asserted that level of risk in its submissions.
The Tribunal has closely examined this section of the regulation and the scale of the described contraventions between minor and major. To label the failure, on these facts, to file a report for the 2012 reporting period as 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 seems to diminish the seriousness of such a contravention.
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. There has been no “previous contravention” as per s. 83(3)1. In fact, 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. As noted above, there was a contravention of a minor impact. The system of administrative penalties, at a minimum, is a compliance tool. At the material time, J&A was required to file an accessibility report. 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. But in this context of a minor contravention at the first phase of reporting obligations for an organization that was, but may no longer be, subject to the reporting requirement, a $2,000 administrative penalty is harsh and more of a punitive response.
ORDER
Therefore, the Tribunal, pursuant to its authority under the Act, varies that order. J&A is to pay an administrative penalty in the amount of $250 and shall file its accessibility report for 2012 (if not already filed), all within 30 days of this order.
LICENCE APPEAL TRIBUNAL
_________________________
Patricia McQuaid, Vice-Chair
Released: June 26, 2014