Canadian Employment Law Today

September 13, 2017

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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comes largely from the absence of any mech- anisms for an individual to file a complaint with the directorate against an organization for non-compliance with the AODA. Rather, the AODA relies on the directorate to iden - tify, initiate and enforce compliance on or- ganizations, which has been largely done through organizations filing accessibility compliance reports as opposed to receiving complaints. Some individuals have attempted to use the Human Rights Tribunal of Ontario to enforce the AODA by filing applications al - leging discrimination on the basis of disabil- ity. Even though the tribunal has been clear it has no jurisdiction to consider violations of the AODA, the Ontario Human Rights Code and AODA are companion legislation. While a complaint before the tribunal must be grounded in a violation of the code — that is, the applicant must show that he has been mistreated in a recognized area such as em - ployment or services on the basis of a pro- hibited ground, such as disability — there is overlap between the requirements under the code as it relates to disability and accommo- dation, and the accessibility standards under the AODA. is overlap could be seen in Cockburn v. YMCAs of Southwestern Ontario, where the applicant alleged discrimination in services on the basis of disability when the service provider refused to pay the cost of provid - ing an American Sign Language (ASL) inter- preter for a meeting to update the applicant's exercise plan. e applicant also alleged that the refusal to pay for the cost of the ASL in- terpreter violated the AODA. In its reasoning, the tribunal began by confirming its lack of jurisdiction to inter- pret and apply the AODA. en, it reviewed established human rights principles — spe- cifically, service providers have a duty to ac- commodate persons with disabilities under the code. While the tribunal did not explic- itly make this statement, the code's duty is similar to the requirement under the AODA that service providers remove barriers to ac- cessible service, information and commu- nications for those who have a disability as recognized under the code. Ultimately, the tribunal in YMCA applied a human rights analysis and found that the applicant did not experience discrimination in services on the basis of disability. e ap - plicant was unable to show that he required an ASL interpreter or explain why other forms of communication — such as e-mail or text — that had been offered, did not meet his medical limitations. His request for an ASL interpreter was a preference, when the service provider was only required to pro - vide reasonable accommodation. When comparing the information and communications standards under the AODA, there is no explicit requirement that organizations provide the specific accessible format or communication support, such as an ASL interpreter, that has been requested by the person with a disability. Rather, the requirement is to "provide or arrange for the provision of accessible formats and com - munication supports for persons with dis- abilities." Providing accessible formats and communication supports must be done in a timely manner and in consultation with the person making the request, which have the markings of the procedural duty to accom - modate under the code. It should also be noted that meeting acces- sibility standards could be used as evidence in a human rights proceeding. While the tribunal does not enforce the AODA, an or- ganization's accessibility policies may be rel- evant evidence, as was the case in McMahon v. U-Haul Co. (Canada) Ltd. ere, the tri- bunal ordered the production of documents proving the respondent had trained its em- ployees as required by the AODA because the information was arguably relevant to the issues in the application. To be clear, an individual remains unable to enforce the AODA by making a com - plaint to the directorate, but an individual with certain facts could shape a violation of the AODA into a human rights application that the tribunal would adjudicate within the human rights framework. To this end, the directorate's report suggests organizations have been compliant on the whole when it comes to the AODA, and employers are encouraged to continue diligently meeting their AODA requirements. Organizations should be aware that the code and the AODA may be complementary, but strictly meeting the requirements under the AODA does not necessarily equate to having completely dis - charged their duty to accommodate under the Code. For more information see: • Cockburn v. YMCAs of Southwestern Ontar- io, 2016 HRTO 1451 (Ont. Human Rights Trib.). • McMahon v. U-Haul Co. (Canada) Ltd., 2012 HRTO 543 (Ont. Human Rights Trib.). Canadian HR Reporter, a Thomson Reuters business 2017 September 13, 2017 | Canadian Employment Law Today ABOUT THE AUTHOR PAMELA CHAN EBEJER Pamela Chan Ebejer is a lawyer with Williams HR Law, a human resources law firm in Markham, Ont., serving employers exclusively. She can be reached at (905) 205-0496 ext 228 or CREDIT: GETCLOSER/SHUTTERSTOCK

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