Accessible Canada Act (S.C. 2019, c. 10)

Marginal note:Review — with respect to facts

• 84 (1) On completion of a review requested under subsection 80(1), or under paragraph 81(2)(b) with respect to the acts or omissions that constitute the violation, the Accessibility Commissioner must determine, on a balance of probabilities, whether the regulated entity or person that requested the review committed the violation.

• Marginal note:Violation not committed — effect

  (2) If the Accessibility Commissioner determines under subsection (1) that the regulated entity or person did not commit the violation, the proceedings commenced in respect of it are ended.

• Marginal note:Violation committed — penalty

  (3) If the Accessibility Commissioner determines that the regulated entity or person committed the violation, and a penalty was set out in the notice of violation, the Accessibility Commissioner must determine whether the amount of the penalty was fixed in accordance with regulations made under subsection 91(1) and

  • (a) if the Accessibility Commissioner determines that it was correctly fixed, he or she must confirm the amount of the penalty; and

  • (b) if the Accessibility Commissioner determines that it was not correctly fixed, he or she must correct the amount.

• Marginal note:Notice of decision

  (4) The Accessibility Commissioner must cause the regulated entity or person to be served with a notice that sets out the Accessibility Commissioner’s decision under this section and the reasons for it and, if the amount of the penalty was confirmed or corrected by the Accessibility Commissioner, the time and manner in which that amount is to be paid.

• Marginal note:Payment

  (5) The regulated entity or person is liable to pay, within the time and in the manner specified in the notice, the amount of the penalty confirmed or corrected by the Accessibility Commissioner.

• Marginal note:Effect of payment

  (6) If a regulated entity or person pays the amount referred to in subsection (5), the Accessibility Commissioner must accept the amount in complete satisfaction of the penalty in respect of the violation and the proceedings commenced in respect of the violation are ended.

Marginal note:Certain defences not available

• 85 (1) A regulated entity or person named in a notice of violation does not have a defence by reason that they

  • (a) exercised due diligence to prevent the violation; or

  • (b) reasonably and honestly believed in the existence of facts that, if true, would exonerate them.

• Marginal note:Common law principles

  (2) Every rule and principle of the common law that renders any circumstance a justification or excuse if the act or omission to which the violation relates could have been the subject of a charge for an offence under this Act but for section 127 applies in respect of a violation to the extent that it is not inconsistent with this Act.

Marginal note:Party to violation

86 If a regulated entity commits a violation, any of the following persons that directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to and liable for the violation whether or not the regulated entity is proceeded against under this Act:

• (a) an officer, director, agent or mandatary of the regulated entity;

• (b) a senior official of the regulated entity; or

• (c) any other person authorized to exercise managerial or supervisory functions on behalf of the regulated entity.

Marginal note:Employees or agents or mandataries

87 A regulated entity is liable for a violation that is committed by any of their employees or agents or mandataries acting in the course of their employment or the scope of their authority as agent or mandatary, whether or not the employee or agent or mandatary that actually committed the violation is identified.

Marginal note:Continuing violation

88 A violation that is committed or continued on more than one day constitutes a separate violation in respect of each day on which it is committed or continued.

Marginal note:Evidence

89 In any proceeding in respect of a violation, a notice of violation purporting to be issued under this Act is admissible in evidence without proof of the signature or official character of the individual purporting to have signed the notice of violation.

Marginal note:Limitation period or prescription

90 No proceedings in respect of a violation may be commenced after the expiry of two years after the day on which the subject matter of the proceedings arose.

Marginal note:Regulations

• 91 (1) The Governor in Council may make regulations

  • (a) classifying each violation as a minor violation, a serious violation or a very serious violation;

  • (b) fixing a penalty, or a range of penalties, in respect of each violation;

  • (c) establishing criteria to be considered in determining the amount of the penalty if a range of penalties is established;

  • (d) respecting the determination of a lesser amount for the purposes of subparagraph 79(1)(b)(iii) and the time and manner in which it is to be paid;

  • (e) respecting the circumstances under which, the criteria by which and the manner in which a penalty for a violation may be reduced under the terms of a compliance agreement entered into under subsection 82(1);

  • (f) respecting the circumstances under which reviews under section 84 are to be oral or in writing; and

  • (g) specifying information for the purposes of section 93.

• Marginal note:Paragraph (1)(b)

  (2) The maximum penalty in respect of a violation that may be fixed under regulations made under paragraph (1)(b) is $250,000.

Marginal note:Powers regarding notices of violation

92 The Accessibility Commissioner may establish the form of notices of violation and establish, in respect of each violation, a short-form description to be used in notices of violation.

Marginal note:Publication

93 The Accessibility Commissioner may make public

• (a) the name of a regulated entity or person that is determined under section 84, or that is deemed by this Act, to have committed a violation;

• (b) the nature of the violation;

• (c) the amount of the penalty imposed, if any; and

• (d) any other information specified in regulations made under subsection 91(1).

PART 6Remedies

Filing of Complaint

Marginal note:Right to file complaint

• 94 (1) Any individual that has suffered physical or psychological harm, property damage or economic loss as the result of — or that has otherwise been adversely affected by — a contravention by a regulated entity of any provision of regulations made under subsection 117(1) may file with the Accessibility Commissioner a complaint that is in a form acceptable to the Accessibility Commissioner.

• Marginal note:Exception — Federal Public Sector Labour Relations Act — employee

  (2) An employee, as defined in subsection 2(1) of the Federal Public Sector Labour Relations Act, is not entitled to file a complaint in respect of a contravention of any provision of regulations made under subsection 117(1) if he or she is entitled to present an individual grievance in respect of that contravention under section 208 of that Act, determined without taking into account subsection 208(2) of that Act and the definition of employee in subsection 206(1) of that Act.

• Marginal note:Exception — Federal Public Sector Labour Relations Act — RCMP member

  (3) An employee, as defined in subsection 2(1) of the Federal Public Sector Labour Relations Act, that is an RCMP member is not entitled to file a complaint in respect of a contravention of any provision of regulations made under subsection 117(1) if he or she is entitled to present an individual grievance in respect of that contravention under section 238.24 of that Act, determined without taking into account subsection 208(2) of that Act.

• Marginal note:Exception — Public Service Employment Act

  (4) An individual is not entitled to file a complaint in respect of a contravention of any provision of regulations made under subsection 117(1) if he or she is entitled to make a complaint in respect of that contravention under section 65 or 77 of the Public Service Employment Act.

• Marginal note:Notice

  (5) The Accessibility Commissioner must cause a written notice of a complaint to be served on the regulated entity against which the complaint was made.

Investigation

Marginal note:Power to conduct investigation

95 The Accessibility Commissioner may conduct an investigation into a complaint filed under subsection 94(1) unless it appears to him or her that

• (a) the complainant ought to exhaust grievance or review procedures otherwise reasonably available;

• (b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act;

• (c) the complaint is beyond the jurisdiction of the Accessibility Commissioner;

• (d) the complaint is trivial, frivolous, vexatious or made in bad faith; or

• (e) the complaint is based on acts or omissions the complainant became aware of more than one year, or any longer period of time that the Accessibility Commissioner considers appropriate in the circumstances, before the filing of the complaint.

Marginal note:Notice

• 96 (1) The Accessibility Commissioner must cause a written notice advising of whether or not he or she has decided to investigate a complaint to be served on the complainant and the regulated entity against which the complaint was made.

• Marginal note:Time and manner for application for review

  (2) If the Accessibility Commissioner’s decision is that the complaint will not be investigated, the notice must specify the time within which and the manner in which an application may be made for a review of the decision.

Marginal note:Joint investigation

97 If the Accessibility Commissioner is of the opinion that two or more complaints involve substantially the same issues of fact, he or she may conduct a joint investigation into the complaints.

Marginal note:Powers of Accessibility Commissioner

98 In the conduct of an investigation of a complaint, the Accessibility Commissioner may

• (a) summon and enforce the appearance of persons before the Accessibility Commissioner and compel them to give oral or written evidence on oath and to produce any records and things that the Accessibility Commissioner considers necessary to investigate the complaint, in the same manner and to the same extent as a superior court of record;

• (b) administer oaths;

• (c) receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Accessibility Commissioner sees fit, whether or not it is or would be admissible in a court of law;

• (d) enter any place — including a conveyance — other than a dwelling-house;

• (e) converse in private with any person in any place entered under paragraph (d) and otherwise carry out in that place any inquiries that the Accessibility Commissioner sees fit; and

• (f) exercise any of the powers referred to in any of paragraphs 73(2)(a) to (l).

Marginal note:Dispute resolution mechanisms

99 The Accessibility Commissioner may attempt to resolve complaints by means of a dispute resolution mechanism.

Marginal note:Discontinuance of investigation

• 100 (1) The Accessibility Commissioner may discontinue the investigation of a complaint if he or she is of the opinion that

  • (a) there is insufficient evidence to pursue the investigation;

  • (b) any of the circumstances mentioned in paragraphs 95(a) to (e) applies; or

  • (c) the matter has been resolved — by means of a dispute resolution mechanism or otherwise — by the complainant and the regulated entity.

• Marginal note:Notice

  (2) The Accessibility Commissioner must cause the complainant and the regulated entity to be served with written notice of the discontinuance of the investigation that sets out the reasons for the discontinuance and that specifies the time within which and the manner in which an application may be made for a review of the decision to discontinue the investigation.

Marginal note:Complaint dismissed

• 101 (1) At the conclusion of an investigation, the Accessibility Commissioner must dismiss the complaint if he or she finds that the complaint is not substantiated.

• Marginal note:Notice

  (2) The Accessibility Commissioner must cause the complainant and the regulated entity to be served with a written notice of the dismissal of the complaint that sets out the reasons for the dismissal and that specifies the time within which and the manner in which an application may be made for an appeal of the decision to dismiss the complaint.

Marginal note:Complaint substantiated

• 102 (1) If, at the conclusion of an investigation, the Accessibility Commissioner finds that the complaint is substantiated, he or she may order the regulated entity to do one or more of the following:

  • (a) take the appropriate corrective measures specified in the order;

  • (b) make available to the complainant, on the first reasonable occasion, the rights, opportunities or privileges that were denied to the complainant as a result of the contravention to which the complaint relates;

  • (c) pay compensation to the complainant for any or all of the wages that they were deprived of and for any or all of the expenses incurred by the complainant as a result of the contravention;

  • (d) pay compensation to the complainant for any or all additional costs of obtaining alternative goods, services, facilities or accommodation, and for any or all of the expenses incurred by the complainant, as a result of the contravention;

  • (e) pay compensation to the complainant in an amount that is not more than the amount referred to in subsection (2) for any pain and suffering that the complainant experienced as a result of the contravention;

  • (f) pay to the complainant an amount that is not more than the amount referred to in subsection (2), if the Accessibility Commissioner determines that the contravention is the result of a wilful or reckless practice.

• Marginal note:Amount

  (2) The amount, for the purposes of each of paragraphs (1)(e) and (f), is

  • (a) for the calendar year during which subsection (1) comes into force, $20,000; and

  • (b) for each subsequent calendar year, the amount that is equal to the product obtained by multiplying

    • (i) the amount determined under this subsection for the preceding calendar year

    by

    • (ii) the ratio that the Consumer Price Index for the preceding calendar year bears to the Consumer Price Index for the calendar year before that preceding calendar year.

• Marginal note:Definition of Consumer Price Index

  (3) In subsection (2), Consumer Price Index, for a calendar year, means the average of the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics Act, for each month in the calendar year.

• Marginal note:Amount to be published

  (4) The Accessibility Commissioner must, as soon as it is determined, publish the amount that is the amount for the purposes of paragraphs (1)(e) and (f) for each calendar year after the year during which subsection (1) comes into force.

• Marginal note:Interest

  (5) An order to pay compensation under paragraph (1)(c) or (d) may include an award of interest at a rate and for a period that the Accessibility Commissioner considers appropriate.

• Marginal note:Copy

  (6) The Accessibility Commissioner must cause the complainant and the regulated entity to be served with a copy of the order made under subsection (1) and a notice that specifies the time within which and the manner in which an application may be made for an appeal of the order.