Law Times

Law Times • February 24, 2014 Page 11 www.lawtimesnews.com respondent costs on that basis, MacLeod suggests. ere could also be costs im- plications for rejecting a reason- able offer to settle. Zeilikman agrees the rules governing the civil courts in that scenario could serve as a point of reference in developing a costs regime for the human rights tribunal. As human rights case law has grown, the complexity of cases has increased, a situation that makes legal advice more impor- tant and narrows the gap be- tween the tribunal and the civil courts, he believes. "Given [the tribunal's] evolu- tion . . . the Rules of Civil Proce- dure should be at the very least used as a guideline," says Zeilik- man. Pinto's report encouraged the Ministry of the Attorney Gen- eral to carry out further research on the question of costs awards, a task he said may take up to 18 months to complete. "I believe it is time that the question of a costs regime at the Ontario tribunal not be put off any further," Pinto wrote. "My recommendation to study the problem further should not be interpreted as a recommendation to do nothing or do very little over a very long time," he added. Asked whether the minis- try had followed this advice, a spokesman said: "Stakeholders have been consulted about this issue at various times, including during the legislative reforms in 2006 and as part of the [Pinto report], and there continues to be significant opposition to leg- islating a special costs power for the HRTO. "While there does not appear to be consensus on this idea, the ministry is aware of the compet- ing arguments and continues to consider the issue." e tribunal conducts public consultations in developing its rules and also has a practice ad- visory committee that serves as a resource for consultation and feedback about the tribunal's policies, practices, rules, prac- tice directions, and services, the spokesman added. e spokesman also noted the tribunal has the power to award costs in accordance with the Stat- utory Powers Procedure Act. However, a 2011 Supreme Court of Canada case, Canada (Canadian Human Rights Com- mission) v. Canada (Attorney General), found human rights tri- bunals couldn't award costs un- less the law explicitly grants them the power to do so, says Greene. Although the Human Rights Tribunal of Ontario has the right to award costs under s. 17(1) of the Statutory Powers Procedure Act, s. 17(2) requires it to make rules of procedure for such costs awards. So far, it hasn't done so. Bill 147 appears to over- ride the provisions of the Statutory Powers Procedure Act as it states the amendments to the code "prevail over the Statu- tory Powers Procedure Act." Greene believes the provision would be subject to interpretation. Whether the bill will be- come law or not is up in the air. Conservative MPP Randy Hill- ier introduced it and the bill is at a very early stage in the legis- lative process. LT Some companies still unaware of AODA obligations ome industries are turning a blind eye to the Accessibility for Ontarians with Disabili- ties Act despite the "cata- strophic" consequences of doing so, according to employment lawyers. But some lawyers worry the latest round of requirements brought in last month also contain legal ambi- guities that could result in accidental non-compliance. e government has been phas- ing in the act over 11 years with the latest instalment coming into force last month. As of Jan. 1, large companies in Ontario must produce accessibility policies and maintain a multi-year accessibility plan. Organizations with more than 50 employees in Ontario must ensure public web sites conform to the World Wide Web Consortium web content accessibility guidelines if they undertake a significant refresh. Jeremy Schwartz, a partner at Stringer LLP, express- es disbelief that certain sectors are failing to take notice of the legislation given that the government passed the act in 2005. "People have had years to figure out what their obli- gations should be," he says. "But a lot of people haven't heard about it or have pretended it doesn't exist," he adds. Most public sector employers are on board with the requirements but some con- struction businesses "just don't be- lieve this law is real," according to Schwartz. Laurie Jessome, a partner prac- tising employment law at Cassels Brock & Blackwell LLP, says she has received calls from people "whose first engagement with the regime was when they received a letter from the ministry asking for a compliance report." Failing to comply could be a very costly business. Corporations face fines of up to $100,000 for each day of non-compliance while directors and officers could also be liable for a daily fine of $50,000. e provincial government has said it's pursuing enforcement ac- tion against non-profit and business organizations with 20 or more em- ployees that haven't filed an accessi- bility compliance report for the act's customer service standard that was due by the end of December 2012. In 2014, organizations need to file a second com- pliance report confirming they continue to meet the standard and are also in line with the act's new re- quirements. Jessome and Schwartz are aware of notices issued to companies in the past year. "It could be catastrophic for an organization to ignore such a notice," says Schwartz. However, in other cases organizations may be un- wittingly flouting the rules. For example, it's not at all clear what constitutes a "significant refresh," according to Schwartz. Does the provision apply to a change of logo or a different colour scheme if the rest of the site stays the same? Does it apply if a company decides to add a blog to its web site? ere may also be lessons for legislators regard- ing the rollout of the act. e phased-in requirements kick in at different points depending on the size of an organization and whether it operates in the public or private sphere. While the aim was to make it easier for companies to conform to the rules, the approach may have backfired in some cases, says Jessome. "It may have overwhelmed some companies," she says. "When the legislation is relatively complex and difficult to manage, employers and private businesses really struggle to achieve compliance without the guid- ance of legal counsel," she adds. But not everyone is seeking the advice of qualified lawyers, according to Schwartz. "An awful lot of con- sultants out there have taken it upon themselves to provide legal advice on [the act]," he says. "e trouble is in some cases, because they're not sure, they preach over-compliance," he adds. e Human Rights Tribunal of Ontario has said it won't hear cases under the act. Matters will instead go before the Licence Appeal Tribunal. It may strike some people as an odd fit but it may well be a recognition that the human rights tribunal al- ready has a heavy workload or it may be an attempt to avoid the perception that the act is a human rights issue in the legal sense. However, the human rights tribunal will inevitably end up hearing cases that refer to the act, Schwartz notes. For example, claims alleging discrimination on the basis of disability may use an organization's failure to comply with the act as evidence of its general failure to take such matters seriously, he predicts. LT FOCUS Let us open the right door for you Kuretzky Vassos Henderson is a leading employment and labour law fi rm situated in the heart of Toronto. We are comprised of ten lawyers, all of whom specialize in the area of employment and labour law. We act for many prominent public and private sector employers as well as for individuals. Our work includes extensive experience in the areas of: Wrongful dismissal • Human rights • Labour relations/Labour law/Collective barganing • Workplace health and safety • Sexual harassment • Employment standards • Employment contracts • Canada Labour Code • Class actions • Mediation/arbitration/ADR www.kuretzkyvassos.com • 416.865.0504 We specialize in Employment and Labour Law in Canada Kuretzky Vassos Henderson LLP Untitled-1 1 13-09-04 8:27 AM BY CHARLOTTE SANTRY Law Times S Jeremy Schwartz finds it hard to believe that certain sectors are failing to take notice of the Accessibility for Ontarians with Disabilities Act. 'Significant opposition' to costs power for HRTO Continued from page 9

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