Policy on Accommodating Clients with Disabilities

1. Effective date

2015-03-27

2. Policy objectives

This policy’s goal is to create and maintain an inclusive, barrier-free environment for the delivery of public-facing services to clients with disabilities.

3. Policy statement

It is the policy of the Office of the Privacy Commissioner of Canada (“OPC”) to create and maintain an inclusive, barrier-free environment for the delivery of public-facing services to clients with disabilities. The duty to accommodate is based on the legal obligations set out in the Canadian Human Rights Act, and is a requirement that must be applied throughout the delivery of our public-facing services. Whenever possible, accommodation should be a proactive rather than a reactive process. If policy and guidelines are in place, and employees are adequately trained, many needs for accommodation will be able to be easily satisfied.

This policy is to be implemented by:

1. Ensuring that accommodation of clients with disabilities is built proactively into the service standards, processes and practices for the delivery of public-facing services;
2. Ensuring the identification and removal of barriers affecting clients with disabilities in respect of our public-facing services, up to the point of undue hardship^{Footnote 1}; and
3. Clearly communicating the expected practices to be followed by OPC employees to accommodate clients with disabilities when delivering public-facing services.

4. Application

This policy applies to all OPC public-facing services. Without limiting the scope of public-facing services, this policy is understood to apply to the following situations^{Footnote 2}:

1. Complaints under the Privacy Act and the Personal Information Protection and Electronic Documents Act (“PIPEDA”);
2. Requests under the Privacy Act and the Access to Information Act;
3. Inquiries to the Information Centre; and
4. Correspondence related to the above items.

5. Definitions

In this policy:

Accommodation/accommodate – refers to the design and adaptation of the delivery of public-facing services to the needs of clients with disabilities and, according to the Supreme Court of Canada, refers to what is required in the circumstances of each case to avoid discrimination.

Adaptive technology – consists of devices or equipment that allows clients with disabilities to participate as fully as possible in OPC services and includes items such as magnification software and hardware, voice recognition software and augmentative communication devices.

Barrier – refers to any physical barrier as well as formal or informal service standard, process or practice that restricts or excludes clients with disabilities from participation in public-facing services.

Client – is any member of the public who requests/receives services from the OPC, including individuals who submit complaints under the Privacy Act or PIPEDA.

Disability – is an umbrella term, covering impairments, activity limitations, and participation restrictions. An impairment is a problem in body function or structure; an activity limitation is a difficulty encountered by an individual in executing a task or action while a participation restriction is a problem experienced by an individual in involvement in life situations.

Duty to accommodate – the duty to accommodate refers to the obligation of the OPC to take steps to eliminate disadvantage to clients resulting from a rule, practice, or physical barrier that has or may have an adverse impact on individuals or groups on a ground prohibited under the Canadian Human Rights Act. The duty to accommodate is written into section 2 and section 15 of the Canadian Human Rights Act; it stipulates that accommodation is required, short of undue hardship.

Undue hardship - under the Canadian Human Rights Act, the OPC may claim undue hardship when adjustments would create an unreasonable demand on resources or create risks to health and safety. Each situation will be viewed as unique and assessed individually. A claim of undue hardship must be supported with facts and detailed analysis of options, impressionistic or speculative reasons will not suffice.

6. Policy requirements

6.1 The Privacy Commissioner (or designated delegate), will:

1. Build accommodation for clients with disabilities into formal or informal service standards, processes and practices for the delivery of public-facing services;
2. Seek legal advice on the application of this policy as needed, in particular where accommodation may be refused based on undue hardship;
3. Inform the OPC Senior Management Committee (“SMC”) where accommodation may be refused based on undue hardship;
4. Make any decision related to the refusal of accommodation based on undue hardship; and
5. Receive and respond to any complaints about accommodation of clients with disabilities related to the delivery of public-facing services.

6.2 Branch heads overseeing the delivery of OPC public-facing services^{Footnote 3} will:

1. Support the Privacy Commissioner in the application and execution in their respective branch of requirements stipulated in subsection 6.1.
2. In addition to paragraph 6.2.i.:
   1. The Director General of Communications will ensure the OPC’s website meets all accessibility requirements of Government of Canada websites and any additional accommodation measures.
   2. The Director IM/IT and Chief Information Officer will provide technical solutions to other branches on accommodation measures involving OPC software and systems.
   3. The Director, Human Resources Management (“HR”) will deliver training for all employees at the OPC involved in the delivery of public-facing services and/or named in this policy.

6.3 Managers (including supervisors) overseeing the delivery of public-facing services^{Footnote 4} will:

1. Ensure employees are familiar with this policy;
2. On a proactive basis, build accommodation for clients with disabilities into formal or informal service standards, processes and practices for the delivery of public-facing services;
3. Respond to requests for accommodation by clients with disabilities; and
4. Decide on accommodation measures to be offered to individual clients with disabilities.

6.4 Legal Services will:

Provide legal advice on the application of this policy.

6.5 OPC employees involved in the delivery of public-facing services will:

1. Be familiar with this policy and adhere to it when delivering public-facing services;
2. Be alert to opportunities to remove actual or potential barriers that may restrict or exclude clients with disabilities from participation in a service;
3. Inform the appropriate manager of opportunities to remove barriers or requests for accommodation; and
4. Be alert to requests for accommodation by clients with disabilities. When in doubt, employees must ask for advice from the appropriate manager.^{Footnote 5}

7. Monitoring

The OPC will review the effectiveness and implementation of this policy, and the degree of compliance with it on an annual basis. It will be subject to review by the Human Resources Management Branch on a cyclical basis of five years.

8. References

Relevant legislation:

1. Access to Information Act;
2. Canadian Charter of Rights and Freedoms;
3. Canadian Human Rights Act;
4. Personal Information Protection and Electronic Documents Act; and
5. Privacy Act.

Related Treasury Board policies and standards:

1. Communications Policy;
2. Policy on Access to Information;
3. Policy on Privacy Protection;
4. Accessibility Standard for Real Property; and
5. Standard on Web Accessibility.

9. Consequences

The Privacy Commissioner (or designated delegate) is responsible for investigating and acting when issues arise regarding policy compliance. The Privacy Commissioner (or designated delegate) is also responsible for ensuring that appropriate remedial actions are taken to address these issues within the OPC.

Consequences of non-compliance with this policy, or of failure to take corrective actions requested by the Privacy Commissioner (or designated delegate), may include the appropriate disciplinary action or the imposition of any other measures determined appropriate in the circumstances.

10. Client enquiries

Client enquiries are to be directed to the manager responsible for the relevant service. Managers must review questions or policy interpretation or clarification with their respective Director General.

Prepared by: PIPEDA Investigations Branch
Authorization Name or Title: Daniel Therrien, Privacy Commissioner
Office of Primary Interest: Human Resources Management Branch

Annex A: Guideline on Accommodating Clients with Disabilities^{Footnote 6}

1. About this guideline

This guideline is not intended to be exhaustive, but to offer suggestions on how to interpret and implement the OPC Policy on Accommodating Clients with Disabilities (the “policy”).

2. Application

This guideline applies to all OPC public-facing services. Without limiting the scope of public-facing services, this guideline is understood to apply to the following situations^{Footnote 7}:

1. Complaints under the Privacy Act and the Personal Information Protection and Electronic Documents Act (“PIPEDA”);
2. Requests under the Privacy Act and the Access to Information Act;
3. Inquiries to the Information Centre; and
4. Correspondence related to the above items.

3. Definitions

For definitions of terms used in this guideline, refer to the policy.

4. Examples of disabilities

Determining what is a disability depends on the circumstances of each client. The following have been found to be disabilities:

1. Blindness or other severe visual impairment;
2. Deafness or other severe hearing impairment;
3. Mobility impairment;
4. Chronic pain;
5. Environmental sensitivities;
6. Addictions;
7. Learning disabilities;
8. Speech impairment;
9. Chronic conditions, such as diabetes;
10. Psychological/psychiatric disabilities;
11. Other permanent or temporary conditions that cause pain or limit or restrict activities.

5. Examples of accommodation

Examples of accommodation that may apply under the policy include, but are not limited to:

1. Modifications in submission/response format
   • Acceptance of written material (e.g., a letter or notice from a respondent) other than a completed complaint form or a letter to the OPC as a formal written complaint under the Privacy Act or PIPEDA.
2. Modifications in the parties involved in service delivery
   • A client may choose to designate a facilitator(s) to support the client in a PIPEDA or Privacy Act complaint process. In this case, the client may request that related correspondence be copied to a facilitator(s) on the complainant’s behalf. Such facilitator(s) may also participate in interviews/meetings in the course of a complaint process.
   • A client may prefer to designate a representative in a PIPEDA or Privacy Act complaint process. In such a case, the complainant can have only one representative and, unless the complainant withdraws his/her authorization for the representative, all communications with the OPC in respect of the subject complaint will be through that representative (i.e., rather than directly with the complainant). By signing a representative authorization form, the complainant agrees that the representative will have the authority to make decisions on the complainant’s behalf in the context of the subject complaint, which will be binding on the complainant.
3. Modifications in setting
   • In-person meetings instead of communicating in writing or by telephone.
4. Modifications in presentation format
   • Letters and reports in an alternate format (e.g., large print document).
   • Letters and reports in electronic format to support use of adaptive technology.
   • Letters and reports in a certain fashion (e.g., minimal use of acronyms, numbered paragraphs) to improve ease of reference and comprehension by the client.
5. Modifications in scheduling / timing
   • Setting timelines in consultation with a client.
   • Providing agendas and/or reminder notices in advance of a scheduled event or deadline.
   • Agreeing to a maximum duration (e.g., 15 minutes) for any telephone conversation or meeting with a client.
   • Teleconferences/meetings outside regular business hours to accommodate the complainant’s limitation(s) and/or facilitator(s).
   • Scheduling “time of availability” following a teleconference or meeting to respond to any additional questions the client may have.

6. Expected outcomes

The expected outcomes of the implementation of the policy are:

1. Implementation of accommodation measures on a proactive basis to remove barriers;
2. Receipt of requests for accommodation;
3. Collection of relevant information and determination of accommodation measures on a case-by-case basis;
4. Informed decisions about accommodation measures;
5. Offers of accommodation in response to requests; and
6. Implementation and monitoring of accommodation measures in response to requests.

7. Process to respond to a request for accommodation^{Footnote 8}

Text version of the Process to respond to a request for accommodation chart

Process to respond to a request for accommodation

• Service delivery will proceed in the normal course, without additional accommodation beyond that which is already built into OPC services, until such time as a specific request for accommodation is received.
• On receipt of a request for accommodation, the OPC will, first, gather relevant information and determine options for accommodation measures. The client requesting the accommodation provides input to options. Also, the client and the OPC review the relevant information to ensure a common understanding.
• The OPC then makes an informed decision about the accommodation it will offer. For complex accommodation measures, consultation with third parties may be necessary.
• When the OPC offers the accommodation, the client indicates if the offer is acceptable. If no, the client may pursue internal recourse, or if required mediation or other external recourse. Following such activity, the OPC once again makes an informed decision and offers accommodation to the client.
• When the accommodation offered by the OPC is accepted by the client, the measures are implemented.
• The OPC monitors and reviews implementation of accommodation measures. In particular, the OPC follows-up on planned accommodation and keeps records. The client and the OPC cooperate throughout this process.
• If following review of the accommodation, the OPC learns that the accommodation is unsatisfactory to the client, the parties return to the step at which the OPC first gathered related information and continue through the process as described to this point.
• If following review of the accommodation, the OPC learns that the accommodation is satisfactory to the client, the parties continue to provide the accommodation in the manner described above, until the service delivery is complete.

 

Receive requests for accommodation

The accommodation process should be as uncomplicated as possible and should respect the dignity and privacy of the client.

In some cases, accommodation for a disability may be provided without a specific request because proactive accommodation is already in place (e.g., when a client uses the teletypewriter to contact the OPC; or when a complainant chooses to designate a representative for a complaint under the Privacy Act or PIPEDA). However, if a client wishes to request additional or different accommodation, the request must be set out in writing, unless to do so would limit the client’s ability to make such a request. The process to make a request should be reflected on the OPC website^{Footnote 9} as well as Privacy Act and PIPEDA complaint forms.^{Footnote 10}

Whether by means of a completed form or other correspondence, any request for accommodation should be communicated as clearly and specifically as possible: a general statement that a client requires accommodation is not sufficient. The type of accommodation that would be most effective and the accompanying rationale for the accommodation (e.g., the limitations caused by the disability) should be provided.^{Footnote 11}

The OPC employee who receives a request for accommodation directs it to the responsible manager. The manager then carries on with the process to respond to the request.

Gather relevant information and determine accommodation measures on a case-by-case basis

To eliminate different and negative treatment of clients with disabilities, the manager should:

1. Communicate information about the relevant service standards, processes and practices to the client in a timely manner;
2. Confer with the client to obtain information on relevant limitations;
3. Determine where barriers may relate to service standards, processes or practices;
4. Explore options for removing these barriers (i.e., accommodation measures) with the client; and
5. Ensure that related information requests are constructive and respectful of privacy and confidentiality.

While a client need not divulge more personal information than is necessary to support a request for accommodation, there must be sufficient information disclosed to permit the OPC to determine whether the request for accommodation is justified. Requests for information to determine accommodation measures should come from the responsible manager. Any personal information received in respect of a request for accommodation under the policy should be kept strictly confidential.

Make an informed decision

The manager is expected to identify and arrange for reasonable accommodation in a timely manner. This may involve making adjustments or bearing some costs and disruptions to operations.

Key questions to consider when making an informed decision are the following:

1. When, how and why was the service standard, process or practice developed?
2. Does the service standard, process or practice treat the client differently or negatively compared to other clients?
3. What modifications of or alternatives to the service standard, process or practice can be considered?
4. Why is a particular service standard, process or practice followed instead of others?
5. Is the service standard, process or practice the least discriminatory means of accomplishing the purpose?

Simple accommodation measures are agreed between the manager and the complainant. Measures involving OPC software/systems or the OPC’s Web presence must be reviewed with the Director IM/IT and Chief Information Officer or the Director General Communications respectively. For other complex accommodation measures, the manager consults appropriate subject matter experts within or outside the OPC, while ensuring the duty of confidentiality.

Offer accommodation

The manager is expected to explore and exhaust all reasonable possibilities for accommodation and keep records of this process. Any decision in terms of refusing to provide accommodation based on undue hardship is made in accordance with the requirements set out in the policy.

In the event the manager and the client cannot reach agreement on acceptable accommodation measures, the internal recourse is to the appropriate Director General or the Privacy Commissioner (or designated delegate) as set out in the policy. A client who is denied accommodation may also wish to contact the Canadian Human Rights Commission.

Implement accommodation measures

Implementation of accommodation measures requires monitoring and review by the manager, in consultation with the client to determine if accommodations are satisfactory. Accommodations that are not satisfactory should be adjusted or modified. If necessary, the manager and the client re-assess the relevant information and determine new or revised accommodation measures.

As appropriate, successful accommodation measures should be built into formal or informal service standards, processes and practices for the delivery of public-facing services on a going-forward basis.