First

Session, 50th General Assembly

Elizabeth II, 2021

BILL 38

AN ACT RESPECTING

Received

and Read the First Time ................................................................

Second

Reading ............................................................................................

Committee ..................................................................................

Amendment

Oct. 25, 2021

Third

Reading ...............................................................................................

Royal

Assent .................................................................................................

HONOURABLE JOHN

ABBOTT

Minister of Children,

Seniors and Social Development

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTES

The Bill would

authorize the establishment of

establish an advisory board to make

require an individual, organization

barriers from being created and to identify and remove barriers;

require public bodies to

standards.

A BILL

Analysis

Short title

PART

INTERPRETATION AND PURPOSE

Interpretation

Purpose

prevails

Crown bound

PART

DUTIES OF MINISTER

Powers and duties of minister

Annual report

Delegation by minister

PART

III

BOARD AND COMMITTEES

Disability Policy Office

Standard development committees

Standard development committee

composition

PART

Establishment of priorities

recommendations

PART

STANDARDS

Compliance with standard

Records

Incentive-based measures

PART

PUBLIC BODIES

PART

VII

COMPLIANCE AND ENFORCEMENT

Director of Compliance and Enforcement

Inspectors

Powers of inspectors

Order of inspector

Director may review decision of

inspector

Review of inspector's order

Monetary penalty

PART

VIII

APPEALS

Appeal

PART

GENERAL

Public disclosure

Protection from liability

Statutory review

Offence

Regulations

RSNL1990 cP-43 Amdt .

Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

Short title

1. This

PART I

INTERPRETATION AND PURPOSE

Interpretation

(1) In this Act

plan" means a plan to address the prevention, identification and removal

of barriers in the policies, programs, practices and services of a public body;

this Act;

(c) " barrier "

means anything that prevents a person with a disability from fully

participating in society, including

(

i) a

physical barrier,

(ii) an architectural

barrier,

(iii) an information or

communications barrier,

(iv) an attitudinal

barrier,

(

v) a technological

barrier, or

(vi) a barrier established

or perpetuated by

an Act, regulations, a policy or a practice;

(d) " board "

(e) " built

environment" includes

(

i) facilities ,

buildings, structures and premises, and

(ii) public transportation

and transportation infrastructure;

(f) " business

day" means a day that is not a Saturday or a holiday;

(g) " court "

means the Supreme Court of Newfoundland and Labrador;

(h) " department "

means, unless the context indicates otherwise, the department presided over by

the minister;

( i ) " director " means the Director of Compliance and

Enforcement appointed

section under 23;

(j) "Disability Policy Office" means a

division of the department established to

(

i) promote

the inclusion of persons with disabilities in all aspects of society,

(ii) engage persons with

disabilities and advocates in developing ways to identify and remove barriers,

and

(iii) work with government

departments and agencies to develop policies and programs that promote

inclusion and removal of barriers;

(k) "disability" includes a physical,

mental, intellectual, cognitive, learning, communication or sensory impairment

or a functional limitation that is permanent, temporary or episodic in nature,

that, in interaction with a barrier, prevents a person from fully participating

in society;

(l) " inspector "

means an inspector appointed under

section 24;

(m) " minister "

means the minister appointed under the Executive

Council Act to administer this Act;

(n) " organization "

means

(

i) a

corporation,

(ii) a sole

proprietorship,

(iii) a partnership,

(iv) a limited

partnership,

(

v) a society,

(vi) an association, and

(vii) an entity prescribed

as an organization in the regulations;

(o) " public

body" means

(

i) a

department created under the Executive

Council Act or a branch of the executive government of the province,

(ii) a corporation, the

ownership of which, or a majority of shares of which, is vested in the Crown,

(iii) a corporation, commission, board or other

body, the majority of the members of which, or the majority of members of the

board of directors of which, are appointed under

an Act of the province, the

Lieutenant-Governor in Council or a minister of the Crown,

(iv) a court established

under

an Act of the province,

(

v) the House of Assembly

and committees of the House of Assembly,

(vi) a municipality under the Municipalities

Act, 1999 , the City of Mount Pearl as established by the City of Mount

Pearl Act , the City of St. John's as established by the City of St.

John's Act and the City of Corner Brook as established by the City of

Corner Brook Act ,

(vii) an authority as

defined in the Regional

Health Authorities Act ,

(viii) Memorial University of

Newfoundland,

(ix) College of the North Atlantic,

(

x) a school board

established or continued under the Schools

Act, 1999 ,

(xi) private educational

institutions, and

(xii) a body designated in

the regulations as a public body; and

(p) " standard

development committee" means a standard development committee established under

section 11.

(2) For the purposes of this Act, a document or

information is publicly available if it is posted on a website or made

available in a manner prescribed in the regulations.

Purpose

3. (1)

preventing, identifying and removing barriers that prevent persons with

disabilities from fully participating in society with respect to

(

a) the design and

delivery of programs and services;

(

b) built environment;

(

c) information and communication;

(

d) the procurement of

goods, services and facilities;

(

e) accommodations ;

(

f) education ;

(

g) health ;

(

h) employment ; and

(

i) an

activity or undertaking prescribed in the regulations.

(2) Communication referred to in paragraph (1 )(

c) includes the use of American Sign Language and

Indigenous sign languages.

(3) Sign languages are recognized as languages for

communication by deaf persons in the province including, without limitation,

American Sign Language and Indigenous sign languages.

Act with higher

(1) Nothing in this Act or the regulations diminishes the rights

and protections offered to persons with disabilities under the Human Rights Act, 2010 .

(2) Where a provision of this Act or the regulations

conflicts with a provision of any other Act or regulation, the provisions of

this Act or the regulations prevail unless the other Act or regulation provides

Crown bound

5. This

Act binds the Crown.

PART II

DUTIES OF MINISTER

Powers and duties

of minister

6. For

(

a) raise awareness of

how barriers impact persons with disabilities;

(

b) promote and encourage

the prevention, identification and removal of barriers;

(

c) oversee the

the purpose of this Act;

(

d) provide information

to assist individuals, organizations and public bodies to integrate applicable

(

e) ensure that individuals,

Annual report

7. The

minister shall

(

a) prepare an annual

report that describes the actions taken in that year by the minister under

section 6; and

(

b) make the report

publicly available.

Delegation by

minister

(1) The minister may, in accordance with the regulations,

delegate a power or duty conferred or imposed on the minister under this Act to

a person prescribed in the regulations.

(2) The delegation of powers or duties referred to

in subsection (1) shall be in writing and shall state the terms, conditions and

limitations of the delegation.

PART III

BOARD AND COMMITTEES

Standards Advisory Board

(1) Advisory Board.

(2) The board shall advise and make

recommendations to the minister respecting

(

a) priorities for the

implementation;

(

b) measures , policies, practices

and other requirements that may be implemented by the government to improve

(

c) long-term

(

d) any other matter

(3) The board shall consist of a minimum of 7

members and a maximum of 9 members appointed by the Lieutenant-Governor in

Council on the recommendation of the minister and shall comply with the

following requirements:

(

a) at least one half of

the members are either

(

i) persons

with disabilities, or

(ii) representatives from organizations

of or for persons with disabilities; and

(

b) at least one member

shall be an Indigenous person.

(4) The Lieutenant-Governor

in Council shall, on the recommendation of the minister, designate from the members appointed under subsection (3) one member

as the chairperson and another member as the vice-chairperson.

(5) A person appointed

under subsection (3) shall be appointed for a term of 3 years and is eligible

to be reappointed but shall not serve for longer than 2 consecutive terms.

(6) Where the term of a

member expires, the member continues to be a member until reappointed or

replaced.

(7) The exercise of the

powers of the board is not impaired by a vacancy on the board.

(8) A member appointed under subsection (3) may be

remunerated in accordance with Treasury Board guidelines.

(9) The board shall

(

a) hold at least 4

regular meetings each year; and

(

b) meet with the

minister at least once a year.

(10) The board shall

(

a) prepare a

summary

report after each regular meeting and make the report publicly available; and

(

b) prepare an annual

report of its activities and operations during the preceding fiscal year, file

it with the minister and make the report publicly available.

(11) Notwithstanding

subsection (5), at least one half of the members appointed following the coming

into force of this Act shall be appointed for a term of 2 years and the

remainder for a term of 3 years and all subsequent appointments of members to

the board shall be for a term of 3 years.

Disability Policy

Office

10. The

Disability Policy Office shall

(

a) support the

implementation and administration of this Act and the regulations;

(

b) provide policy and communication

support for this Act and the regulations;

(

c) support other

departments to develop and implement public education and awareness on the purpose of this

Act;

(

d) examine and review

measures, policies, practices and other requirements to improve opportunities for

persons with disabilities;

(

e) identify and study

issues of concern to persons with disabilities and recommend action where

appropriate; and

(

f) provide

administrative support for the board.

Standard

development committees

(1) Where the

minister shall direct the board to establish a standard development committee

of technical experts and other individuals familiar with issues specific to the

standard the minister is requesting be developed, to assist the board with

making recommendations to the minister regarding the content and implementation

(2) The board shall prepare terms of reference for

each standard development committee and shall submit them to the minister for

review and approval.

(3) The terms of reference referred to in

subsection (2) shall include

(

a) identification and

criteria for any technical experts needed for the standard development

committee; and

(

b) the timelines for

each stage of the standard development process.

Standard

development committee composition

(1) A standard development committee established under

section 11

shall consist of

(

a) persons with

disabilities or representatives from organizations representing persons with

disabilities;

(

b) representatives of

organizations and public bodies and classes of organizations and public bodies that

may be affected by the standard being developed; and

(

c) representatives from

departments that have responsibilities related to the standard being developed.

(2) At least one half of the members of a standard

development committee shall be persons referred to in paragraph (1 )( a).

(3) An individual does not need to be a member of

the board to be a member of a standard development committee.

(4) A member of a standard development committee

appointed under subsection (1) may be remunerated in accordance with Treasury

Board guidelines.

PART IV

Establishment of

priorities

(1) The board shall make recommendations to the minister respecting priorities for

(2) The minister shall review the boards

recommendations referred to in subsection (1) and where the minister approves

one or more of the recommendations, the minister shall determine the order in

Establishment of

(1) The

Lieutenant-Governor in Council may, on the recommendation of the minister, make

(2) Notwithstanding subsection (1), the minister may

the recommendations of the board under

section 16.

standards

(

a) specify the

individuals, organizations or public bodies that are subject to the standard;

(

b) set out measures,

policies, practices and other requirements for

(

i) preventing

barriers from being established, and

(ii) identifying and

removing barriers; and

(

c) require individuals, organizations

or public bodies that are subject to the standard to implement those measures,

policies, practices or other requirements within the time periods specified in

the standard.

individual, an organization or a public body that

(

a) designs and delivers

programs and services;

(

b) provides information

or communication;

(

c) procures goods,

services and facilities;

(

d) offers accommodations;

(

e) provides education;

(

f) provides

healthcare;

(

g) employs persons;

(

h) owns , operates,

maintains or controls an aspect of the built environment other than a private

residence with 3 or less residential units; or

(

i) conducts

an activity or undertaking prescribed in the regulations.

classes of individuals, organizations or public bodies or aspects of the built

environment and 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 an individual, an organization or a public body or its annual

revenue;

(

b) the type of activity

or undertaking in which an individual, organization or public body is engaged

or the sector of the economy of which an individual, an organization or public

body is 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, a structure or premises, that is owned, operated, maintained or

controlled by an individual, an organization or a public body.

to include or exclude an individual, an organization or a public body or an

aspect of the built environment, having the same or different attributes,

qualities or characteristics.

(5) An individual, an organization or a public

specific in its application and may be limited as to time and place.

Proposed

(1) When making a recommendation to the minister regarding a

objective for the activity or undertaking, the sector, the aspect of the built

environment or the individuals, organizations or public bodies to which the

standard relates;

(

b) the measures,

policies, practices or other requirements that the board believes should be

implemented, including

(

i) how

and by whom the measures, policies, practices or other requirements should be

implemented, and

(ii) the time periods for

implementing the measures, policies, practices or other requirements; and

(

c) the United Nations

Convention on the Rights of Persons with Disabilities.

(2) In recommending the time period for

(

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

standard; and

(

c) any other matter

requested by the minister.

(3) In preparing its recommendation, the board

shall consult with

(

a) persons with

disabilities;

(

b) representatives from

organizations of and for persons with disabilities;

(

c) representatives of

those engaged in the activity or undertaking, or the individuals, organizations

or public bodies, or representatives of the class that may be affected by the

(

d) representatives of the

public bodies that have responsibilities relating to the activity, undertaking

(

e) representatives from

Indigenous governments and organizations; and

(

f) other individuals,

organizations or public bodies that the minster considers advisable.

(4) The board's recommendations shall be submitted

to the minister in the form and within the time specified by the minister.

(5) The minister shall make the recommendations

publicly available.

Proposed

(1) After receiving the board's recommendations, the

recommendations in whole, in part or with any modifications that the minister

considers appropriate.

(2) The minister shall make the proposed

(3) Within 60 business days after a proposed

longer time period specified by the minister, an individual, an organization and

a public body may submit comments about the proposed standard to the minister.

(4) After consulting with the board with respect

to any comments received and where the minister considers it appropriate, revising

updated

18. (1)

is made and every 5 years thereafter, the minister shall refer the

(2) The person or committee undertaking the review

under this

section shall consult with

(

a) persons with

disabilities;

(

b) representatives from organizations

of and for persons with disabilities; and

(

c) representatives from

organizations and public bodies affected by the implementation of the

PART V

STANDARDS

Compliance with

standard

19. An

Records

20. An

standard shall

(

a) prepare and keep

records in accordance with the regulations; and

(

b) make those records

available for inspection and examination under this Act and the regulations.

Incentive-based

measures

21. Where

the minister believes it is in the public interest to do so, the minister may

recommend that the Lieutenant-Governor in Council prescribe by regulation incentive-based

measures to encourage and assist an individual, an organization or a public

body, or a class of individuals, organizations or public bodies, to meet or

PART VI

PUBLIC BODIES

plan

(1) Within 2 years of the coming into force of this Act and for every 3 years after

identification and removal of barriers in the policies, programs, practices and

services of the public body.

(

a) a report on the measures

the public body has taken and intends to take to identify, prevent and remove

barriers;

(

b) information on

procedures the public body has in place to assess the following to determine

(

i) any

of its proposed policies, programs, practices and services, and

(ii) any proposed

enactments or by-laws that it will be administering; and

(

c) any other information

prescribed in the regulations.

shall consult with persons with disabilities or representatives of organizations

representing persons with disabilities.

plans publicly available.

(5) Two or more public bodies may agree to have a

PART VII

COMPLIANCE AND ENFORCEMENT

Director of Compliance

and Enforcement

(1) The minister may appoint a Director of Compliance and

Enforcement who may carry out the duties and exercise the powers of the director

under this Act.

(2) The director shall

(

a) carry out the

powers and duties assigned to the director under this Act;

(

b) advise the minister

with respect to compliance and enforcement matters;

(

c) monitor all

complaints of non-compliance, inspector visits, orders issued, director reviews,

notices of monetary penalties and appeals;

(

d) provide the minister

with a

summary report annually or at any more frequent interval as requested by

the minister; and

(

e) perform other duties

as assigned by the minister.

(3) The director may delegate the exercise of any

of the director's powers or duties, other than the power to review an order or

decision.

(4) The delegation of powers or duties referred to

in subsection (3) shall be in writing and shall state the terms, conditions and

limitations of the delegation.

(5) The minister shall share the report referred

to in paragraph (2 )(

d) with the board.

Inspectors

(1) The minister may designate individuals or classes of individuals

to act as inspectors for the purpose of this Act and the regulations.

(2) The director is designated an inspector for

the purpose of this Act and the regulations.

(3) A person shall not interfere with, obstruct, attempt to obstruct, or fail to cooperate with, an inspector

in the exercise of the inspector's duties or functions under this Act or the

regulations.

(4) A person shall not knowingly make a false or

misleading statement, either orally or in writing, to an inspector while the

inspector is exercising powers or carrying out duties or functions under this

Act or the regulations.

Powers of inspectors

25. An

inspector may, at all reasonable times, for purposes related to the

administration or enforcement of this Act or the regulations, inspect or

examine the premises, processes, book and records of a person that the

inspector may consider relevant for the purpose of determining compliance with

this Act or the regulations.

Order of

inspector

(1) Where an inspector finds that this Act or the regulations are being or have

been contravened, the inspector may issue an order requiring the individual, organization

or public body responsible for the contravention to remedy it.

(2) An order under subsection (1) shall contain

the information prescribed in the regulations.

Director may

review decision of inspector

27. The

director may, on the director's own motion, review any decision of an inspector

that does not result in the issuance of an order and may confirm the

inspector's decision or direct the inspector to issue an order under

section 26.

Review of

inspector's order

(1) An individual, an organization or a public body named in an

order made under

section 26 may request the director to review the order.

(2) A request under subsection (1) shall be made

in writing and shall include the information prescribed in the regulations.

(3) Where a request for review is not received by

the director within 14 business days after the order is served, the order is

final.

(4) The director is not required to hold a hearing

when a request for review is made but the director shall give the individual,

organization or public body requesting the review the opportunity to make

written submissions.

(5) Where a request for a review is made, an inspector's

order is stayed pending the outcome of the review by the director.

(6) The director may confirm, vary or revoke an

order of the inspector.

(7) The director shall within 30 business days of

the request for review being made, provide the individual, organization or

public body who requested the review

(

a) a copy of the

decision including written reasons; and

(

b) notification of the

right to appeal the order to the court under

section 30.

Monetary penalty

(1) Where the director is of the opinion that an individual, an organization or

public body has failed to comply with an order made under

section 26 within the

time period specified in the order, the director may issue a written notice

requiring the individual, organization or public body to pay a monetary penalty

in the amount determined in accordance with the regulations.

(2) Notice of a monetary penalty may only be

issued after the period for appealing an order has expired or, where an appeal

has been filed, after the appeal has been heard and a decision has been made

confirming the order.

(3) The notice of monetary penalty shall

(

a) include the

information prescribed in the regulations; and

(

b) be served on the

individual, organization or public body required to pay the monetary penalty.

(4) An individual, an organization or a public

body required to pay a monetary penalty shall pay the monetary penalty

(

a) within 30 business days

after the notice of the monetary penalty is served; or

(

b) where the monetary penalty

is appealed, within 30 business days after the decision on the appeal.

(5) A

monetary penalty may not be issued by the director where more than 2 years have

passed since the act or omission that rendered the individual, organization or

public body liable to the monetary penalty first came to the knowledge of the

director.

(6) The director may file a certificate with the

court signed by the director that sets out

(

a) the amount of the monetary

penalty issued; and

(

b) the individual, organization

or public body against whom the monetary penalty is issued.

(7) A certificate filed under this

section has the

same force and effect as if it were a judgment obtained in the court for the

recovery of a debt in the amount set out in the certificate and may be enforced

in the same manner as a judgment of the court.

(8) An individual, organization or public body who

pays a monetary penalty for an incident of non-compliance may not be charged

with respect to that non-compliance unless the non-compliance continues after

the penalty is paid.

(9) Monetary penalties paid under this Act may be

and awareness.

PART VIII

APPEALS

Appeal

(1) An individual, an organization or a public body who is

directly affected by a decision or order of the director made under

(

a) section 26 with

respect to an order made by the director acting as an inspector;

(

b) section 28 with

respect to a review of an order of an inspector; or

(

c) section 29 with

respect to a monetary penalty,

may appeal the decision or order by filing a notice of appeal with the

court and serving a copy of the appeal on the director.

(2) An appeal may be made to the court on the

following grounds:

(

a) in the case of a

decision or order referred to in paragraphs (1)(

a) and (b), that the finding of

a contravention of this Act or the regulations was incorrect; or

(

b) in the case of a

monetary 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.

(3) A notice of appeal shall be filed within 30 business

days of the date the individual, organization or public body is served with the

notice of the decision or order that is being appealed.

(4) On receipt of the notice of appeal under subsection

(1), the director shall file with the court copies of

(

a) all documents and

materials that were before the director when the director made the decision or

order;

(

b) the director's

decision or order; and

(

c) the director's

written reasons for the decision or order.

(5) An appeal to the court operates as a stay of

the decision or order pending the outcome of the appeal.

(6) On hearing the appeal, the court may confirm, vary

or dismiss the decision or order or refer the matter back to the director.

PART IX

GENERAL

Public disclosure

(1) The minister may issue public reports disclosing

details of orders and monetary penalties made under this Act.

(2) Reports referred to in subsection (1) may

include personal information as defined in the Access to Information and Protection of Privacy Act, 2015 .

Protection from

liability

32. The

minister, director, members of the board, employees of the Disability Policy

Office, members of standard development committees, an inspector or a person

acting under the authority of this Act or the regulations shall not be liable

for anything done in good faith in the exercise or performance of a power, duty

or function conferred or imposed on the person under this Act or the

regulations.

Statutory review

(1) After the expiration of not more than 5 years after the coming into force of

this Act and every 5 years thereafter, the minister shall refer this Act to a

person or committee for the purpose of undertaking a comprehensive review of

the p rovisions and operation of this Act or part of

it.

(2) The person undertaking the review under this

section shall consult with

(

a) persons with

disabilities;

(

b) representatives from

organizations of and for persons with disabilities;

(

c) representatives of

those engaged in an activity or undertaking, or the individuals, organizations

or public bodies, or representatives of a class that have been, or may be,

affected by this Act or the regulations;

(

d) representatives of

the public bodies that have responsibilities relating to an activity,

undertaking or class that have been, or may be, affected by this Act or the

regulations;

(

e) representatives from

Indigenous governments and organizations; and

(

f) other individuals, organizations

or public bodies that the minster considers advisable.

Offence

(1) An individual, an organization or a public body who

(

a) fails to

(

i) prepare

and keep records in accordance with the regulations,

(ii) make the records

available for inspection and examination, or

(iii) comply with an

(

b) knowingly makes a

false or misleading statement to the director or an inspector acting under the

authority of this Act or the regulations;

(

c) knowingly makes a

false or misleading statement in a record or report given under this Act or

regulations; or

(

d) 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 or the

regulations,

is guilty of an offence and liable on

summary conviction to a fine of

not more than $1,000 where the person is an individual and not more than

$25,000 where the person is an organization or public body.

(2) Where an organization or public body commits

an offence under this Act, a director, officer, employee or agent of the the organization or public body who authorized, permitted

or acquiesced in the commission of the offence is also guilty of an offence,

whether or not the organization or public body has been prosecuted or

convicted.

Regulations

35. The

Lieutenant-Governor in Council may make regulations

(

a) prescribing an entity

as an organization for the purposes of paragraph (2)(1)(n);

(

b) designating bodies as

public bodies for the purposes of paragraph 2(1)(o);

(

c) prescribing the

manner in which a document may be made publicly available;

(

d) prescribing an

activity or undertaking for the purpose of paragraph 3(1)(

i) and 15(2)( i );

(

e) respecting the

delegation of the powers and duties of the minister and prescribing to whom the

powers and duties may be delegated;

(

f) establishing

(

g) respecting

record-keeping requirements for individuals, organizations and public bodies that

(

h) respecting incentive-based

measures to encourage and assist an individual, an organization or a public

body, or a class of individuals, organizations or public bodies, to meet or

(

i) prescribing

(

j) prescribing the

information to be included in an order of an inspector;

(

k) prescribing the

information to be included in a request for the director to review an order;

(

l) respecting the

determination of amounts of monetary penalties;

(

m) prescribing the

information to be included in a notice of monetary penalty;

(

n) defining any word or phrase

used but not defined in this Act; and

(

o) generally to give

effect to this Act.

RSNL1990 cP-43 Amdt .

(1) Schedule C of the Public Service

Commission Act is amended by deleting the entity reference " Provincial Advisory Council on the Inclusion of Persons

with Disabilities".

(2) Schedule

C of the Act is amended by inserting

immediately before the statutory appointment reference Apprenticeship and Certification Act , subsection 5(1) the statutory appointment

subsection 9(3) ".

Commencement

37. This

Act comes into force on December 3, 2021.

Queen's Printer