In Part One of this series we looked at how and when the Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11 (“AODA”) and the design of public spaces requirements provided for by O. Reg. 191/11 Integrated Accessibility Standards (the “IASR”) will apply.  Part Two of the series looked at the threshold of reconstruction/redevelopment/replacement that will trigger an obligation to comply with the IASR.

In the finale of this series we will look at the potential ramifications of not complying with the IASR. Section 21(4) of AODA provides that the following orders may be issued in the event that a contravention of the regulations, including the design of public spaces standards (“DPS Standards”), is established:

  1. Comply with the accessibility standard or other regulation within the time specified in the order, subject to subsection (4.1). Subsection 4.1 provides for an extension of time in order to accommodate someone with a disability.
  2. Subject to subsection (6), pay an administrative penalty in accordance with the regulations. Subsection (6) sets out the rationale for ordering an administrative penalty.

Section 83(1) of the IASR sets out the current amounts of possible penalties, which are dependent on the following factors:

  1. Whether the impact of the contravention is minor, moderate or severe. The impact is based on the following criteria:
    1. A contravention is minor where it involves the contravention of an administrative requirement.
    2. A contravention is moderate where it involves the contravention of a requirement for organizational preparedness.
    3. 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.
  2. The contravention history of the organization over the past two reporting cycles. The contravention history is determined by:
    1. A contravention history is minor where there has been no more than one previous contravention within the two most recent reporting cycles.
    2. A contravention history is moderate where there has been between two and five previous contraventions within the current two reporting cycles.
    3. A contravention history is major where there has been six or more previous contraventions within the current two reporting cycles.
  1. Whether the organization is a corporation or an individual.

The administrative penalty is then based on the impact of the contravention and the contravention history, as set out in this chart (PDF).

In cases where the impact of the contravention is determined to be major and the contravention history is major, the penalty can be calculated as a daily penalty up to a maximum of $100,000.00.

These penalties illustrate the importance of considering the DPS Standards when undertaking work on a publicly accessible space. Should you have any questions or concerns, please feel free to reach out to the author to discuss the possible impact of the DPS Standards on your project.

Should you have any questions or concerns, please feel free to reach out to a member of Miller Thomson’s Condominium & Strata group.