Accessibility for Disabilities
Requirement in Mandate to Accommodate
Page last modified: January 25 2022
When Is It Legally Necessary for a Business to Install Access Ramps?
It is mandatory for businesses and organizations to provide accommodations for individuals with mobility impairments as special needs; however, this obligation should only extend to the extent that it causes undue hardship. The concept of the "point of undue hardship" is ambiguous and specific to each circumstance.
Recognizing What It Takes to Make a Property Accessible and Whether It Qualifies as Discrimination
Up until an unreasonable hardship is reached, a variety of people or organizations must make concessions for people with special needs.
Statutes like the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”), the Accessibility for Ontarians With Disabilities Act, 2005, S.O. 2005, Chapter 11 (the “AODA”), and common law rulings provide the need to make certain adjustments.
The Law
In the case of Sprenger v. Gananoque (Town), 2019 HRTO 354, the issue of alleged failure to accommodate was raised among other concerns. This case highlighted the broader challenge municipalities face in ensuring accessibility to their facilities and services, often resulting in legal actions.
Large corporations and government entities, due to their size and resources, have a higher threshold for what constitutes “undue hardship” regarding accommodation compared to smaller businesses. However, they are also commonly targeted in accessibility-related cases due to their perceived ability to cover the costs and responsibilities associated with accommodation.
Municipal governments, being presumed to possess deep taxpayer pockets, are expected to prioritize ensuring accessibility to their properties and services. The costs of accommodation, such as removing physical barriers, installing ramps, providing auditory signals at traffic lights, or incorporating braille signage for the visually impaired, are often spread across the taxpayer base.
These accommodations aim to facilitate access to municipal facilities, parks, sidewalks, and other public spaces for individuals with disabilities. Legal cases, like Sprenger v. Gananoque (Town), shed light on instances where failures to accommodate are alleged, prompting discussions and actions toward improved accessibility within municipalities.
The applicant in the case made several discrimination and reprisal allegations, summarized as follows:
1. Dissolution of the Town’s Accessibility Advisory Committee, of which the applicant was a member, on July 5, 2016.
2. Failure to implement Accessibility Advisory Committee’s recommendations on accessible parking plans in 2015.
3. Inaccessible location for AODA training in September 2015, not offered to all committee volunteers.
4. Lack of updated public consultation process under the AODA, as confirmed by the Town Clerk in November 2016.
5. Approval of non-compliant building projects by the Chief Building Inspector throughout 2017.
6. Community garden development without consultation in 2016 and inadequate consultation for a second garden in 2017.
7. Development or redevelopment of parks in 2016 and 2017 not compliant with the AODA.
8. Non-compliant sidewalks completed in 2016 and 2017, raising concerns about accessibility:
a. Lack of access with a walker on Henrietta Street sidewalk.
b. Roller coaster effect on the Victoria Street sidewalk causing navigation difficulties and physical strain.
9. Lack of accommodation for mobility issues on a new shuttle service that began operating in 2017.
10. Lack of proper consultation and consideration of accessible features during renovations to Town Hall.
11. Alleged mistreatment, being called a pest, and denied the opportunity to speak about accessible features during a Planning Advisory Committee meeting in July 2017.
12. Approval of a poorly designed beach ramp for wheelchair access without meaningful consultation.
13. Visit from a police officer to the applicant’s home in response to her concerns about the unsafe beach ramp and alleged statements implying she should cease her advocacy for accessibility.
14. Perceived reprisal through a forwarded email comment indicating “see below really” in response to a query about a pending response.
These allegations collectively underscore the applicant’s concerns regarding multiple instances of non-compliance with accessibility standards, inadequate consultation, and perceived mistreatment or reprisals related to her advocacy for accessibility in various town projects and initiatives.
Standing Concerns (right to claim)
In the case of Sprenger, it’s crucial to note that while numerous concerns were raised, many of these were systemic rather than specific violations directly impacting Ms. Sprenger’s rights. The Human Rights Tribunal of Ontario (HRTO) is empowered to address remedy requests for individuals whose rights have been personally affected. However, the HRTO lacks the mandate to directly address systemic complaints.
In this context, Ms. Sprenger lacked standing on the aspects of her Application that raised systemic issues rather than those directly affecting her. The HRTO explicitly indicated that systemic issues, though important, were beyond the scope of what they could address within the context of an individual’s claim. This underscores the limitation of the HRTO’s jurisdiction in handling broader systemic concerns that aren’t directly tied to the rights violation of the individual bringing the case.
[10] Many of the alleged incidents raise issues of systemic discrimination and contain no allegation that the applicant has personally experienced any adverse treatment. The Tribunal has held that an individual must allege an infringement of their own rights under the Code and not an application that she or he believes to be in the public interest. See Carasco v. University of Windsor, 2012 HRTO 195 (CanLII); Freitag v. Penetanguishene (Town), 2015 HRTO 1275 (CanLII).
[11] Specifically allegations numbered 1, 2, 3, 4, 5, 6, 7 and 12 (as set out above) did not contain any allegations of adverse treatment of the applicant. I find these allegations must be dismissed as having no reasonable prospect of success.
Furthermore, while both the Code and the AODA may prescribe accommodation requirements, the HRTO is empowered only to address concerns arising out of the Code; and accordingly, violations of the AODA are beyond the review of, and redress by, the HRTO:
In a similar vein, several allegations in this case involve claims where the respondent allegedly misinterpreted the AODA. However, it’s important to note that the Tribunal lacks jurisdiction to address purported violations of the AODA, as established in prior cases like Clipperton-Boyer v. McDonalds Restaurants of Canada Limited, 2016 HRTO 967 (CanLII), and Bishop v. Hamilton Entertainment and Convention Facilities Inc., 2012 HRTO 708 (CanLII).
The applicant did not present arguments indicating how these allegations could reasonably succeed given the Tribunal’s established legal precedent. Therefore, Allegations 3, 4, 5, 7, and 8, specifically those raising concerns about non-compliance with the AODA, are dismissed due to lacking a reasonable prospect of success based on the Tribunal’s jurisprudence.
Summary Comment
In the interim decision of Sprenger, several allegations were dismissed because they aimed at addressing systemic issues rather than specific violations affecting Ms. Sprenger. Additionally, claims centered on violations of the AODA rather than the Code were also dismissed. This highlights an important lesson: while instances of accommodation failures might exist, the HRTO isn’t empowered to address every allegation, even those that might have merit and warrant attention from another authority. Recognizing the limitations of the HRTO’s jurisdiction is crucial, as some valid concerns may fall beyond its scope.
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