Federal Government Publishes Proposed Accessible Canada Regulations and Invites Public Input

On February 13, 2021, the federal government issued a notice regarding the proposed Accessible Canada Regulations (Proposed Regulations), which establish a proposed framework to promote compliance with accessibility requirements under the Accessible Canada Act (ACA). The Proposed Regulations would apply to entities under federal jurisdiction.

In this Federal Post, we provide an overview of the key requirements set out in the Proposed Regulations and that federal sector employers should be aware.

Background

Pursuant to the ACA, federally regulated entities are obligated to report their policies and practices in relation to the identification and removal of barriers by publishing their accessibility plans, progress reports, and feedback processes, to the public.

The Proposed Regulations establish specific criteria for the development and publication of accessibility plans, progress reports and feedback processes. In addition, the Proposed Regulations establish criteria for determining the administrative monetary penalties, which are designed to promote compliance with the ACA.

The Proposed Regulations operationalize sections of the ACA related to the:

preparation and publication of accessibility plans and progress reports;
establishment of feedback processes and publication of descriptions of feedback processes;
retention of documents;
service of documents by the Accessibility Commissioner; and
administrative monetary penalties (AMPs).

Planning and Reporting Requirements

Should the Proposed Regulations come into force, proscribed federal entities with an average of 10 or more employees will be required to begin a three year planning and reporting cycle by preparing and publishing an initial accessibility plan. The first calendar year of the reporting cycle will consist of an accessibility plan, followed by a progress report in each of the subsequent two calendar years. Upon the completion of a cycle, a new cycle will commence with the federal entity publishing an updated accessibility plan.

The Proposed Regulations would set the dates by which proscribed federally regulated entities would be required to publish their initial accessibility plans:

federal government departments, the Canadian Forces, agencies and Crown corporations would publish their initial accessibility plans by December 31, 2022;
private sector entities with 100 or more employees would publish their initial accessibility plans by June 1, 2023; and
private sector entities with between 10 and 99 employees would publish their initial accessibility plans by June 1, 2024.

If, after June 1, 2023, an entity is no longer exempted from the planning and reporting requirements or becomes newly subject to the ACA, its accessibility plan would be due by June 1 of the second year following the year in which the entity has an average of 10 or more employees or becomes subject to the ACA.

Accessibility Plan and Progress Reports

The Proposed Regulations outline the requisite criteria for accessibility plans and progress reports, which include the enumeration of specific headings.

Publication and Notification of Accessibility Plans, Progress Reports and Description of Feedback Processes

The Proposed Regulations require applicable federal entities to notify the Accessibility Commissioner on where their accessibility plans, progress reports and descriptions of feedback processes can be found. This must occur within 48 hours of the publication of this information.

In addition to requiring that the accessibility plans, progress reports and descriptions of feedback processes be written in simple, clear and concise language, the Proposed Regulations require that these materials be published on the main digital platform that is owned, operated or controlled by the entity that it uses to communicate with the public (such as a website or Facebook page). The materials must be published in a manner that makes it accessible on the digital platform either through a hyperlink or directly on the home screen or homepage.

These materials must be published in a format that is compliant with Level AA of the most recent version of the Web Content Accessibility Guidelines (WCAG) published by the World Wide Web Consortium (W3C), and be available in both English and French.

For certain federally-regulated entities that do not have digital platforms, the entities must display printed copies of their accessibility plans, progress reports, and descriptions of feedback processes in each of their places of business. Affected entities must also provide their accessibility plans and progress reports to members of the public upon request.

Alternate Formats

Upon request, affected federally regulated entities would be required to provide accessibility plans and progress reports in print, large print, braille, audio format, and an electronic format that is compatible with adaptive technology and is intended to assist persons with disabilities. The Proposed Regulations provide for a timeframe within which federally regulated entities must provide alternate formats of their accessibility plans and progress reports.

Feedback Process

Proscribed federally regulated entities will be required to ensure their feedback processes allow for persons to give their feedback anonymously, and in any manner that the entity communicates with the public. Except for instances where feedback is anonymous, entities would be required to acknowledge the receipt of the feedback.

In the event that an entity updates their feedback processes, the entity would be required to publish a simple, clear and concise description of their updated process. In addition, the entity would be required to notify the Accessibility Commissioner of the update to their feedback process within 48 hours of the publication, and provide information on where the update can be found.

Document Retention

The Proposed Regulations contain record retention requirements. Published accessibility plans, progress reports and descriptions of feedback processes on digital platforms would need to be retained for a period of six years from the initial publication date and an archived electronic version of each file would need to be kept for an additional one year. For federally regulated entities which do not use digital platforms, the entity would need to retain a copy of each document for seven years after they were originally published. Federally regulated entities would also have to keep a copy of any feedback received for a period of seven years.

Service of Documents

The Proposed Regulations also outline requirements for the service of any notice or order referred to under the ACA or its associated regulations.

Administrative Monetary Penalties (AMPs) Framework

The Proposed Regulations outline the Administrative Monetary Penalties framework, which classifies violations of the ACA and its associated regulations as being either “minor”, “serious” or “very serious”. Each classification has a monetary penalty range. The penalty amounts for violations that fall within these ranges would be calculated based on:

the classification of the violation,
the entity’s five-year history of prior notices of violation,
a list of criteria used to determine the severity of the violation; and
and the size of the entity.

Penalties under the Proposed Regulations can range from $250 to $250,000.00.

Invitation to Make Representations Regarding the Proposed Regulations

The government is inviting the public to provide input on the Proposed Regulations and is requesting feedback by no later than April 19, 2021.

Should you wish to make submissions on the Proposed Regulations and require assistance, please contact your regular Hicks Morley lawyer.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©

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