Accessibility Plans Due for Some Federally Regulated Entities by June 1, 2023

The Accessible Canada Act (the “Act”) came into force on July 11, 2019. As discussed in a previous Focus Alert, the Act is federal legislation intended to provide a proactive and systemic approach to the identification, removal and prevention of barriers to accessibility for persons with disabilities in relation to the following priority areas:

Employment;
The built environment;
Communication;
Information and communication technologies;
The procurement of goods, services and facilities;
The design and delivery of programs and services;
Transportation; and
Other areas prescribed by regulation.

The Act requires federally regulated entities to prepare and publish accessibility plans and progress reports, as well as to establish a process for receiving and addressing feedback on accessibility. Specifics regarding these obligations are contained in the Accessible Canada Regulations (the “ACR”), which came into force on December 13, 2021. Besides outlining the requirements of the Act in greater detail, the ACR create a framework for administrative monetary penalties that can be imposed in the event of a violation. Entities in certain sectors are also subject to additional regulations that provide further guidance on the aforementioned requirements.

Although the requirements of the federal accessibility framework in respect of government entities started coming into effect last year, certain requirements specific to private sector entities with 100 or more employees take effect on June 1, 2023. Accordingly, federally regulated private sector employers who are subject to these requirements must ensure that they publish an initial accessibility plan and establish a process for receiving feedback by no later than this deadline, and that they comply with all other forthcoming requirements and deadlines established by the framework.

Overview of Forthcoming Requirements Under the Federal Accessibility Framework

The below chart provides a brief overview of forthcoming requirements under the federal accessibility framework:

Requirement	Description of Requirement	Deadline		Notes
Requirement	Description of Requirement	Private Sector Entities with Avg. of 100+ Employees in 2021	Private Sector Entities with Avg. of 10 -99 Employees in 2021	Notes
Accessibility Plans	Organizations must prepare and publish an initial accessibility plan setting out the steps that organization will take to improve accessibility. Specifically, the ACR requires that accessibility plans contain the following: · Under a general heading, contact information (including mailing address, phone number, email address and title of person responsible for receiving feedback), · Headings and information (e.g., policies, programs, practices, services, plans, goals, etc.) related to the identification and removal of existing barriers, as well as the prevention of new barriers, in the various priority areas of the Act, and · Under a consultations heading, details of how the organization consulted with persons with disabilities in preparing their plan.	June 1, 2023	June 1, 2024	Accessibility plans must be updated in consultation with persons with disabilities and re-published every 3 years thereafter.
Feedback Process	Organizations must establish a process for receiving feedback – including anonymous feedback – about (1) the manner in which the organization is implementing its accessibility plan, and (2) the barriers encountered by persons that deal with the organization. Under the ACR, this process must be available in person, by mail, by telephone, by email, and in any other way in which the organization communicates with members of the public (e.g., Facebook, Twitter, etc.). Organizations must also acknowledge receipt of feedback in the same manner in which it was received, except where it was provided anonymously.	June 1, 2023	June 1, 2024	Under the Act, organizations must include a description of their feedback processes on their website.
Progress Reports	Organizations must prepare and publish progress reports providing an update about how the organization is doing in meeting its accessibility plan, as well as to provide information about any other accessibility-related progress it has made that was not initially detailed in its plan. Under the ACR, the headings and information that organizations must include in their progress reports essentially mirror those in the accessibility plan, but as applicable in the context of a report. Additionally, however, under a feedback heading, organizations must detail the feedback they have received from persons with disabilities and explain how they have considered that feedback.	June 1, 2024 & June 1, 2025	June 1, 2025 & June 1, 2026	Progress reports must be published by the first and second anniversary of the deadline for publication of each accessibility plan.

Getting Into the Nitty Gritty of the Accessible Canada Regulations

a) Publication and Notification

Pursuant to the ACR, organizations must publish their accessibility plans, progress reports and descriptions of feedback processes online if they have an online presence. In such cases, the documents must be posted to the home page or available through a hyperlink on the organization’s website, and must comply with the latest version of the Web Content Accessibility Guidelines (WCAG), level AA in French and English.

Where organizations do not have an online presence, they must instead keep paper copies of the documents at all of their business locations, in an area that is clearly accessible to the public (i.e., reception area or entrance).

Once an organization publishes an accessibility plan, a progress report or a description of their feedback processes, they will be required to notify the Accessibility Commissioner (the “Commissioner”) of same within no more than 48 hours.

b) Alternate Formats

If requested, organizations must provide their accessibility plans, progress reports and descriptions of feedback processes in alternate formats including print, large print, braille, audio recording, and electronic. Requests for alternative formats must receive a response within the following timelines:

For print, large print or electronic formats → 15 days for the federal government and large businesses, and 20 days for small businesses
For braille and audio formats → 45 days for all organizations

c) Retention

Organizations must keep their accessibility plans and progress reports for 7 years after the day on which they were required to be published. If they were originally published online, the accessibility plans and progress reports must be retained online. If, however, they were instead published at the organization’s business location(s), they may be retained as paper or electronic copies.

Similarly, organizations must keep the most recent version of the description of their feedback processes, as well as any feedback received, for 7 years.

d) Exemptions

It is important to note that federally regulated private sector businesses with 9 or less employees are exempt from the ACR’s requirements regarding accessibility plans, as well as those regarding progress reports and descriptions of feedback processes. Additionally, the accessibility planning and reporting rules will not apply to First Nations Band Councils for the first 5 years while the federal government consults with First Nations communities on a potential tailored approach to accessibility.

Helpfully, the ACR outlines relevant timelines with respect to accessibility plans, progress reports and feedback processes for organizations who were previously but who later cease to be exempt.

e) Enforcement

The Commissioner will be permitted to use monetary penalties to ensure that organizations comply with the requirements of the ACR. Violations of the rules will be categorized as either minor, serious, or very serious. The more serious a violation is, the greater the penalty amount that may be imposed, with a possible range of $250.00 to $250,000.00.

As a general rule, penalties for small businesses and individuals will be lower than those for large businesses and organizations. In determining an appropriate penalty in each case, the Commissioner will consider a number of factors, some of which include:

The number of times the organization or person broke a rule in the past 5 years,
If breaking the rule harmed anyone or could have harmed anyone,
If the organization attempted to remove barriers and change their attitude towards accessibility,
How careless the organization was,
If breaking the rule benefitted the organization or person, and
If the organization or person helped the Accessibility Commissioner with their investigation.

Notably, if an organization pays a penalty imposed by the Commissioner within 15 days, the total amount of the penalty will be decreased by 10%.

Sector-Specific Regulations Within the Federal Accessibility Framework

As previously noted, certain organizations are also subject to additional sector-specific regulations that provide further guidance in respect of their obligations under the Act.

Accessible Transportation Planning and Reporting Regulations

The ATPRR, which came into force in December 2021, apply to all transportation services providers (or “TSPs”) operating in the federal transportation network that are required to comply with any provision of regulations made under subsection 170(1) of the Canada Transportation Act.

The ATPRR outline additional requirements with respect to accessibility plans, progress reports and feedback processes that apply specifically to TSPs. Some of these additional requirements relate to:

the contents of accessibility plans and progress reports,
publication and notification obligations in respect of the Canadian Transportation Agency (the “Agency”), and
special rules for “deemed classes” of TSPs.

For more information on the ATPRR and compliance with its unique requirements, interested readers can consult the following Agency resources:

Canadian Radio-television and Telecommunications Commission Accessibility Reporting Regulations

The Canadian Radio-television and Telecommunications Commission Accessibility Reporting Regulations (the “CRTCARR”), which came into force in July 2021, apply to regulated broadcasting undertakings, Canadian carriers, and telecommunications service providers.

Like the ATPRR, the CRTCARR outline additional requirements with respect to accessibility plans, progress reports and feedback processes that apply specifically to these broadcasting and telecommunications entities. Some of these additional requirements relate to:

publication and notification obligations in respect of the Canadian Radio-television and Telecommunications Commission (the “Commission”), and
special rules for “deemed classes” of broadcasting and telecommunications entities.

For more information on the CRTCARR and compliance with its unique requirements, readers can consult the following Commission resources:

In Our View

Federally regulated organizations that are preparing to meet their forthcoming legal obligations under the federal accessibility framework should be aware of the helpful online resources that are available to assist them in ensuring proper compliance. Besides those sector-specific resources noted above, Employment and Social Development has also published Guidance on the Accessible Canada Regulations which, amongst other things, provides subject organizations with direction and best practices in respect of creating and updating accessibility plans.

On a related note, federally regulated organizations should note that Accessibility Standards Canada recently published three new accessibility standards. Although standards, unlike regulations, are voluntary, they are nonetheless – along with the federal accessibility framework – another step towards contributing to a more inclusive and barrier-free Canada.

For more information or for assistance in respect of the federal accessibility framework, please contact Steven Williams at 613-940-2737 or Lauren Jamieson at 613-404-5058.