3rd Session, 40th Legislature
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THE ACCESSIBILITY FOR MANITOBANS ACT
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(Assented to )
WHEREAS achieving accessibility will improve the health, independence and well-being of persons disabled by barriers;
AND WHEREAS most Manitobans will confront barriers to accessibility at some point in their lives;
AND WHEREAS persons disabled by barriers face a wide range of obstacles that prevent them from achieving equal opportunities, independence and full economic and social integration;
AND WHEREAS barriers create considerable costs to persons disabled by those barriers, their families and friends, and to communities and the economy;
AND WHEREAS in developing our built environment, barriers have been perpetuated;
AND WHEREAS a systemic and proactive approach for identifying, preventing and removing barriers complements The Human Rights Code in ensuring accessibility for Manitobans;
AND WHEREAS under the United Nations Convention on the Rights of Persons with Disabilities, which Canada ratified in 2010, member states are expected to take appropriate measures to ensure accessibility and independent living;
AND WHEREAS the equality rights of all Canadians, including persons disabled by barriers, are enshrined in the Canadian Charter of Rights and Freedoms;
THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
The following definitions apply in this Act.
"accessibility standard" means an accessibility standard prescribed under this Act. (« norme d'accessibilité »)
"barrier" means a barrier described in section 3. (« barrière »)
"council" means the Accessibility Advisory Council continued under section 13. (« conseil »)
"court" means the Court of Queen's Bench. (« tribunal »)
"director" means the director appointed under section 23. (« directeur »)
"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act. (« ministre »)
"organization" means any organization in the public or private sector and includes
(a) the government and any board, commission, or agency of the government;
(b) any corporation, agency, board, commission, authority or other entity established under an Act;
(c) an unincorporated association, partnership, sole proprietorship or trade union; and
(d) any other prescribed type of entity. (« organisme »)
"prescribed" means prescribed by regulation.
"regulation" means a regulation made under this Act. (« règlement »)
The purpose of this Act is to achieve accessibility by preventing and removing barriers that disable people with respect to
(c) the built environment, including
(i) facilities, buildings, structures and premises, and
(ii) public transportation and transportation infrastructure;
(d) the delivery and receipt of goods, services and information; and
(e) a prescribed activity or undertaking.
In achieving accessibility, regard must be had for the following principles:
Access: Persons should have barrier-free access to places, events and other functions that are generally available in the community;
Equality: Persons should have barrier-free access to those things that will give them equality of opportunity and outcome;
Universal design: Access should be provided in a manner that does not establish or perpetuate differences based on a person's impairment;
Systemic responsibility: The responsibility to prevent and remove barriers rests with the person or organization that is responsible for establishing or perpetuating the barrier.
Recognition of existing legal obligations
Nothing in this Act or the regulations diminishes the obligations of a person or organization with respect to persons with disabilities under any other enactment, and, in particular, under The Human Rights Code.
For a person who has a long-term physical, mental, intellectual or sensory impairment, a barrier is anything that interacts with that impairment in a way that may hinder the person's full and effective participation in society on an equal basis.
The following are examples of barriers:
(a) a physical barrier;
(b) an architectural barrier;
(c) an information or communications barrier;
(d) an attitudinal barrier;
(e) a technological barrier;
(f) a barrier established or perpetuated by an enactment, a policy or a practice.
This Act binds the Crown.
The mandate of the minister is to achieve accessibility for persons disabled by barriers by
(a) raising awareness of how people are disabled by barriers;
(b) promoting and encouraging the prevention and removal of barriers;
(c) overseeing the development and implementation of accessibility standards necessary to attain the purpose of this Act;
(d) facilitating the integration of applicable accessibility standards into the activities of persons and organizations; and
(e) ensuring that persons and organizations that may be made subject to accessibility standards are consulted in the development of the standards and provided with information about their duties under the standards.
The minister must prepare an annual plan that sets out the activities that the minister intends to undertake in the coming year in carrying out his or her mandate.
The minister's annual plan is to be made in relation to the government's fiscal year. The first plan is to be prepared for the 2015-2016 fiscal year.
Minister's plan available to the public
The minister must make the annual plan available to the public by posting it on a government website and by any other means the minister considers advisable.
Accessibility standards established by regulation
The Lieutenant Governor in Council may make regulations establishing accessibility standards.
Subject to subsections (3) and (4), an accessibility standard may
(a) prescribe the persons or organizations that are subject to the standard;
(b) set out measures, policies, practices or other requirements for
(i) identifying and removing barriers, and
(ii) preventing barriers from being established; and
(c) require the persons or organizations that are subject to the standard to implement those measures, policies, practices or other requirements within the time periods specified in the standard.
An accessibility standard may apply only to a person or organization that
(a) employs persons;
(b) offers accommodation;
(c) owns, operates, maintains or controls an aspect of the built environment, including
(i) a facility, building, structure or premises, or
(ii) public transportation or transportation infrastructure;
(d) provides goods, services or information; or
(e) is engaged in a prescribed activity or undertaking or meets other prescribed requirements.
An accessibility standard may not impose any requirements on the owner or occupier of premises that contain one or two dwelling units.
An accessibility standard may create different classes of persons or organizations or of aspects of the built environment and, without limitation, may create classes with respect to any attribute, quality or characteristic or any combination of those things, including
(a) the number of persons employed by persons or organizations or their annual revenue;
(b) the type of activity or undertaking in which persons or organizations are engaged or the sector of the economy of which persons or organizations are a part; or
(c) a particular characteristic of an aspect of the built environment, such as the type of infrastructure or the size of a building, structure or premises, that is owned, operated, maintained or controlled by a person or organization.
An accessibility standard may define a class to include or exclude a person or organization, or an aspect of the built environment, having the same or different attributes, qualities or characteristics.
Several accessibility standards may apply
More than one accessibility standard may apply to a person or organization or to an aspect of the built environment.
An accessibility standard may be general or specific in its application and may be limited as to time and place.
Prerequisite for recommending a standard be made
The minister may recommend to the Lieutenant Governor in Council that an accessibility standard be made only after he or she has received the recommendations of the council under section 9.
PROCESS FOR DEVELOPING ACCESSIBILITY STANDARDS
Minister to prepare terms of reference
The minister must prepare terms of reference for every proposed accessibility standard.
Scope of accessibility standard to be identified
The terms of reference for a proposed accessibility standard must specify the sector or the persons or organizations that may be made subject to the standard.
Terms to be given to council and made public
The minister must give the terms of reference to the council and make the terms available to the public by posting them on a government website and by any other means the minister considers advisable.
Objectives, measures and time periods
After receiving the terms of reference for a proposed accessibility standard, the council must consider, and may make any recommendations it determines to be appropriate about,
(a) the accessibility objectives for the activity or undertaking, the sector, the aspect of the built environment, or the persons or organizations, to which the standard relates; and
(b) the measures, policies, practices or other requirements that the council believes should be implemented, including
(i) how and by whom they should be implemented, and
(ii) the time periods for implementing them.
In recommending time periods for implementing an accessibility standard, the council must consider
(a) the nature of the barriers that the measures, policies, practices or other requirements are intended to identify, prevent or remove;
(b) any technical and economic considerations that may be associated with implementing the standard; and
(c) any other matter referred to in the terms of reference.
In preparing its recommendations, the council must consult with
(a) persons disabled by barriers or representatives from organizations of persons disabled by barriers;
(b) representatives of those engaged in the activity or undertaking, or representatives of the sector or the persons or organizations, that may be made subject to the proposed accessibility standard;
(c) other representatives of the government and the boards, commissions and agencies of the government that have responsibilities relating to the activity or undertaking, sector or persons or organizations that may be made subject to the proposed accessibility standard; and
(d) any other persons or organizations that the minister considers advisable.
The council's recommendations must be submitted to the minister in the form and within the time specified by the minister.
Recommendations to be by consensus
The council must attempt to achieve a consensus among its members on the recommendations, but one or more members may submit separate recommendations if a consensus is not achieved.
Minister to prepare proposed standard
After receiving the council's recommendations, the minister may prepare a proposed accessibility standard.
Proposed standard and recommendations to be made public
The minister must make the proposed accessibility standard and the council's recommendations available to the public by posting them on a government website and by any other means the minister considers advisable.
Within 60 days after a proposed accessibility standard is made available to the public, or within any other longer time period specified by the minister, a person may submit comments about the proposed standard to the minister.
Finalizing proposed accessibility standard
After consulting with the council with respect to any comments received and revising the proposed standard if the minister considers it appropriate, the minister may recommend the accessibility standard to the Lieutenant Governor in Council.
Accessibility standards to be updated regularly
Within five years after an accessibility standard is made, and within each subsequent five-year period, the council
(a) must examine the accessibility objectives and the measures, policies, practices or other requirements set out in the standard, and how and by whom they are being implemented; and
(b) may develop recommendations respecting any updates to the standard and submit them to the minister.
Application — updating standards
Sections 9 and 10 apply, with necessary changes, to the process to be followed by the council and the minister in recommending updates to an accessibility standard.
Withdrawal of terms of reference completes process
The minister may, by giving written notice to the council, withdraw the terms of reference for an accessibility standard that has been made or referred to the council, and if he or she does so, the council must cease its activities in respect of that standard.
ACCESSIBILITY ADVISORY COUNCIL
Accessibility Advisory Council
The Accessibility Advisory Council, established under The Accessibility Advisory Council Act, is continued under this Act.
The council is to advise and make recommendations to the minister respecting
(a) priorities for the establishment of accessibility standards and, in accordance with sections 9 and 11, the content of accessibility standards and the time periods for their implementation;
(b) measures, policies, practices or other requirements that may be implemented by the government to improve accessibility;
(c) long-term accessibility objectives for furthering the purpose of this Act; and
(d) any other matter relating to accessibility on which the minister seeks the council's advice.
The council is to consist of at least 6 and not more than 12 members appointed by the Lieutenant Governor in Council.
In appointing members to the council, the Lieutenant Governor in Council must include
(a) persons disabled by barriers or representatives from organizations of persons disabled by barriers; and
(b) representatives of those engaged in activities or undertakings, the sectors or the persons or organizations that may be made subject to the accessibility standard.
A member of the council holds office for a term not exceeding three years.
A member whose term expires continues to hold office until he or she is re-appointed, the appointment is revoked or a successor is appointed.
The Lieutenant Governor in Council must designate one member of the council as chair and another as vice-chair, to act if the chair is absent or unable to act, or when authorized by the chair.
The council must
(a) meet at least four times each year; and
(b) meet with the minister at least once every 12 months.
The council must publish a report after each meeting that summarizes the discussions and any actions taken at the meeting. The report may be published in any manner the council determines, including electronically on a website.
Subject to the approval of the minister, the council may establish one or more committees and assign to them the functions that it considers appropriate.
In establishing a committee, the council must specify the committee's mandate and provide guidelines for its functions and operation.
Members of a committee are to be appointed by the council and may include persons who are not members of the council.
The minister may approve the payment of remuneration and reasonable expenses to the members of the council and a committee of the council.
The minister may provide resources from his or her department to support the work of the council or a committee of the council.
RECORDS AND REPORTING
A person or organization that is subject to an accessibility standard must
(a) prepare and keep records in accordance with the regulations; and
(b) make those records available for inspection and examination under this Act.
Within six months after the end of each year, the minister must prepare a report on the following:
(a) the activities that the minister has undertaken in the year to carry out his or her mandate under this Act;
(b) the activities of the council in the year.
The minister must table a copy of the report in the Assembly within 15 days after it is completed if the Assembly is sitting or, if it is not, within 15 days after the next sitting begins.
COMPLIANCE AND ENFORCEMENT
Compliance with accessibility standard
A person or organization that is subject to an accessibility standard must comply with the standard within the time period specified in the standard.
If a provision of this Act or the regulations conflicts with a provision of any other enactment, the provision of this Act or the regulations prevails unless the other enactment provides a higher level of accessibility for persons disabled by barriers.
A director shall be appointed in accordance with The Civil Service Act.
Under the control and direction of the minister, the director is responsible for
(a) the general administration of this Act;
(b) exercising the powers and performing the duties of the director under this Act;
(c) advising the minister respecting the administration of this Act; and
(d) performing any other duties assigned by the minister.
The director may delegate to a person employed in the same department as the director the exercise of any duty, power or function of the director, other than the power to review an order under section 28.
The minister may appoint any person as an inspector for the purpose of this Act.
The minister may designate a person or class of persons to act as an inspector in relation to any matter referred to in the designation, on such terms as the minister may specify.
An inspector may carry out any inspection, examination or test reasonably required to
(a) determine compliance with this Act or the regulations;
(b) verify the accuracy or completeness of a record, or of other information provided to the director or inspector; or
(c) perform any other duty or function that the director or inspector considers necessary or advisable in the administration or enforcement of this Act and the regulations.
To perform a duty or function under subsection (1) (in this section referred to as an "inspection"), the inspector may at any reasonable time, without a warrant, enter
(a) any land or any building, structure or premises that are subject to this Act or the regulations; or
(b) any other premises or place where the inspector has reasonable grounds to believe that records or things relevant to the administration or enforcement of this Act or the regulations are kept.
Entry into dwelling only with consent or warrant
The authority under subsection (2) must not be used to enter a dwelling that is occupied as a residence except with the consent of the owner or occupant or with the authority of a warrant under section 26.
An inspector carrying out an inspection under this Act must produce identification on request.
The person in charge of the premises or place being inspected or having custody or control of the relevant records or things must
(a) produce or make available to the inspector all records and things that he or she requires for the inspection;
(b) provide any assistance or additional information, including personal information, that the inspector reasonably requires to perform the inspection; and
(c) on request, provide written answers to questions asked by the inspector.
To inspect records that are maintained electronically at the premises or place being inspected, the inspector may require the person in charge of the premises or place or having custody or control of the relevant records to produce the records in the form of a printout or to produce them in an electronically readable format.
The inspector may use equipment at the premises or place being inspected to make copies of relevant records, and may remove copies from the premises or place for further examination.
Records may be removed to make copies
An inspector who is not able to make copies of records being inspected may remove the records from the premises or place to make copies. He or she must make copies as soon as practicable and return the original records to the person, premises or place from which they were removed.
A document certified by the director or an inspector to be a printout or copy of a record obtained under this Act
(a) is admissible in evidence without proof of the office or signature of the person purporting to have made the certificate; and
(b) has the same probative force as the original record.
A justice, upon being satisfied by information on oath that
(a) an inspector has been refused entry to any premises or place to carry out an inspection under section 24; or
(b) there are reasonable grounds to believe that
(i) an inspector would be refused entry to any premises or place to carry out an inspection under section 24, or
(ii) if an inspector were to be refused entry to any premises or place to carry out an inspection under section 24, delaying the inspection in order to obtain a warrant on the basis of the refusal could be detrimental to the inspection;
may at any time issue a warrant authorizing an inspector or any person named in the warrant to enter the premises or place and carry out an inspection.
A warrant under this section may be issued upon application without notice.
An inspector who finds that this Act or a regulation is being contravened may, by written order, require the person or organization responsible for the contravention to remedy it.
An order must
(a) name the person or organization to whom it is directed;
(b) describe the contravention to which the order relates;
(c) inform the person or organization what must be done in order to comply with the order;
(d) specify the time period within which the person or organization must comply with the order;
(e) inform the person or organization that they may be required to pay an administrative penalty if they fail to comply with the order;
(f) state that the person or organization who receives the order may, in writing, request a review by the director under section 28;
(g) state the address for filing such an application for a review;
(h) be dated the day the order is made; and
(i) be served on the person or organization.
A person or organization named in an order made under section 27 may request the director to review the order. The request must be made in writing and must include the person's or organization's name and address and the reasons for requesting the review.
Time limit for requesting review
If a request for review is not received by the director within 14 days after the order is served, the order is final.
The director is not required to hold a hearing when a request for review is made, but the director must give the person or organization requesting the review the opportunity to make written submissions.
A request for review operates as a stay of the order pending the outcome of the review.
The director may confirm the original order, or may revoke or vary it in any manner the director considers appropriate.
Serving the decision and notice of right to appeal
The director must serve the following on the person or organization who requested the review:
(a) a copy of his or her decision, with written reasons;
(b) a notice that the person or organization may appeal the director's decision to the court in accordance with section 30.
If the director is of the opinion that a person or organization has failed to comply with an order made under section 27 within the time period specified in the order, he or she may issue a notice in writing requiring the person or organization to pay an administrative penalty in the amount determined in accordance with the regulations.
Notice of an administrative penalty may be issued only after the period for appealing an order has expired or, if an appeal has been filed, after a decision has been made on the appeal.
The notice of administrative penalty must set out
(a) the provision of this Act or the regulations that the person or organization failed to comply with;
(b) the name of the person or organization required to pay the penalty;
(c) the amount of the penalty;
(d) when and how the penalty must be paid; and
(e) a description of the right of the person or organization to appeal the penalty to the court under section 30.
The notice of administrative penalty must be served on the person or organization required to pay the penalty.
A person or organization who is aggrieved by the following decisions of the director may appeal the decision by filing a notice of appeal with the court and serving a copy of the appeal on the director:
(a) a decision made under section 28 in relation to an order;
(b) a decision to issue a notice requiring the person or organization to pay an administrative penalty, made under subsection 29(1).
An appeal may be made to the court on the following grounds:
(a) in the case of a decision under section 28, that the finding of non-compliance with this Act or the regulations was incorrect;
(b) in the case of an administrative penalty, that
(i) the amount of the penalty was not determined in accordance with the regulations, or
(ii) the amount of the penalty is not justified in the public interest.
A notice of appeal must be filed within 30 days after the date the person or organization is served with the notice of the decision that is being appealed.
The director is a party to an appeal, and is entitled to be heard, by counsel or otherwise, upon the appeal.
An appeal to the court operates as a stay of the decision or notice pending the outcome of the appeal.
On hearing the appeal, the court may confirm the order or notice, quash it or vary it in any manner that it considers appropriate.
Subject to an appeal under section 30, a person or organization required to pay an administrative penalty must pay the amount of the penalty within 30 days after the notice is served.
The amount of the penalty is a debt due to the government if it is not paid
(a) within 30 days after notice of the penalty is served; or
(b) if the penalty is appealed, within 30 days after the decision on the appeal.
Certificate registered in court
The director may certify a debt referred to in subsection (2), or any part of such a debt that has not been paid. The certificate may be registered in court and may be enforced as if it were a judgment of the court.
No offence to be charged if penalty is paid
A person or organization who pays an administrative penalty for an incident of non-compliance may not be charged with an offence in respect of that non-compliance, unless the non-compliance continues after the penalty is paid.
Public disclosure of orders and administrative penalties
The director may issue public reports disclosing details of orders and administrative penalties made under this Act. This disclosure may include personal information.
ACCESSIBILITY REPORTS BY PUBLIC SECTOR BODIES
Definition of "public sector body"
For the purposes of this section, each of the following is a public sector body:
(a) the government;
(b) a municipality that is designated as a public sector body in the regulations;
(c) an organization in the public sector that is designated as a public sector body in the regulations.
Public sector body to prepare annual accessibility plan
For 2016 and for every second year after that, a public sector body must prepare an accessibility plan that addresses the identification, prevention and removal of barriers that disable people in the policies, programs, practices and services of the public sector body.
An accessibility plan must include
(a) a report on the measures the public sector body has taken to identify, prevent and remove barriers that disable people;
(b) the measures the public sector body intends to take in the period covered by the plan to identify, remove and prevent barriers that disable people;
(c) the measures in place to ensure that the public sector body assesses the following to determine their effect on the accessibility for persons disabled by barriers:
(i) any proposed policies, programs, practices and services of the public sector body,
(ii) any proposed enactments or by-laws that will be administered by the public sector body; and
(d) all other information prescribed for the purpose of the accessibility plan.
In preparing an accessibility plan, a public sector body must consult with persons disabled by barriers or representatives from organizations of persons disabled by barriers.
A public sector body must make each of its accessibility plans available to the public.
For certainty, the councils of two or more municipalities designated as public sector bodies may agree that one accessibility plan be prepared for all the municipalities that are party to the agreement.
A person is guilty of an offence who
(a) fails to
(i) prepare and keep records in accordance with the regulations, or
(ii) make those records available for inspection and examination;
(b) fails to comply with an accessibility standard as required under section 20;
(c) knowingly makes a false or misleading statement to the director or an inspector acting under the authority of this Act;
(d) knowingly makes a false or misleading statement in a record or report given or required under this Act; or
(e) hinders, obstructs or interferes with, or attempts to hinder, obstruct or interfere with, the director or an inspector acting under the authority of this Act.
Corporate officers and directors
If a corporation commits an offence under this Act, a director, officer, employee or agent of the corporation who authorized, permitted or acquiesced in the commission of the offence is also guilty of an offence, whether or not the corporation has been prosecuted or convicted.
A person who is guilty of an offence under this Act is liable on summary conviction to a fine of not more than $250,000.
The Lieutenant Governor in Council may make regulations
(a) prescribing types of entities for the purpose of the definition "organization" in section 1;
(b) prescribing an activity or undertaking for the purpose of clause 2(1)(e) and prescribing an activity, undertaking or requirement for the purpose of clause 6(3)(e);
(c) exempting a person or organization or a class of persons or organizations, or an aspect of the built environment from the application of any provision of this Act or the regulations and prescribing terms and conditions for the exemption;
(d) respecting recordkeeping and reporting requirements for persons and organizations that are subject to an accessibility standard, which may be different for the different standards;
(e) governing orders made by inspectors under section 27;
(f) for the purpose of sections 29 to 32, respecting administrative penalties for contraventions of this Act, including regulations
(i) prescribing the form and content of the notice of administrative penalty and the notice of appeal,
(ii) respecting the determination of amounts of administrative penalties, which may vary according to the nature or frequency of the contravention and, in the case of a person, whether the person in non-compliance is an individual or a corporation, and
(iii) respecting any other matter necessary for the administration of the system of administrative penalties provided for under this Act;
(g) for the purpose of section 33, designating municipalities and organizations in the public sector as public sector bodies;
(h) governing the preparation and contents of accessibility plans and the time period within which accessibility plans must be prepared and made available to the public;
(i) respecting the manner in which any order, notice or other document under this Act may be served, given or provided to any person or organization;
(j) defining any word or phrase used but not defined in this Act;
(k) respecting any transitional matters necessary for the effective implementation of this Act or an accessibility standard;
(l) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purpose of this Act.
The Lieutenant Governor in Council may amend a regulation that establishes an accessibility standard when it considers it advisable to do so.
No action or proceeding may be brought against the minister, the director, an inspector or any other person acting under the authority of this Act for anything done, or omitted to be done, in good faith, in the exercise or intended exercise of a power or duty under this Act or the regulations.
Within four years after this Act comes into force, the minister must appoint a person who is to undertake a comprehensive review of the effectiveness of this Act and report on his or her findings to the minister.
The person to be appointed by the minister must be approved by the Lieutenant Governor in Council before the appointment becomes effective.
A person undertaking a review under this section must consult with the public and, in particular, with persons disabled by barriers or representatives from organizations of persons disabled by barriers.
Without limiting the review under subsection (1), a report may include recommendations for improving the effectiveness of this Act.
The minister must table a copy of the report in the Assembly within 15 days after receiving it if the Assembly is sitting or, if it is not, within 15 days after the next sitting begins.
Within five years after a report was last tabled in the Assembly under subsection (5), the minister must appoint a person who is to undertake a further comprehensive review of the effectiveness of this Act.
Subsections (2) to (5) apply, with necessary changes, to a further review under subsection (6).
TRANSITIONAL, REPEAL, C.C.S.M. REFERENCE AND COMING INTO FORCE
A person who is a member of the Accessibility Advisory Council, as established under The Accessibility Advisory Council Act, S.M. 2011, c. 37, on the day that this Act comes into force continues as a member of the Accessibility Advisory Council until replaced or re-appointed under this Act.
The Accessibility Advisory Council Act, S.M. 2011, c. 37, is repealed.
This Act may be referred to as chapter A1.7 of the Continuing Consolidation of the Statutes of Manitoba.
This Act comes into force on the day it receives royal assent.