OHRC Submission to the MMAH on proposed changes to the Ontario Building Code

Ontario Human Rights Commission
Submission Regarding
Ministry of Municipal Affairs and Housing
Proposed changes to the barrier-free requirements of the Ontario Building Code Regulation

March 1, 2013

Overview

The Ontario Government is proposing amendments to the barrier-free requirements of the Ontario Building Code regulation involving renovations, paths of travel, vertical access, visitable suites in multi-unit residential buildings, adaptable design and construction, visual fire alarms, washrooms, as well as use of educational materials and resources and other changes. Typically changes to the Building Code do not take effect for 12 to 18 months to allow the building and design industry to plan for and adjust to new requirements.

This initiative is part of the goal of the Accessibility for Ontarians with Disabilities Act, 2005 (AODA) to achieve accessibility for Ontarians with disabilities with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises by January 1, 2025.

The Government-appointed Accessible Built Environment Standards Development Committee submitted a final proposed standard in 2010 covering buildings and outdoor spaces. The Ontario Human Rights Commission (OHRC) made a submission on the Committee’s initial proposed standards.^[1] The OHRC’s recommendations in this submission on the Building Code are consistent with its past submissions.^[2]

The Government’s approach is to continue to regulate barrier-free building requirements through the Building Code, which allows them to be enforced locally through the building permit process. Building Code requirements apply based on class of building; unlike AODA regulations which apply based on class of obligated organization.

The proposed changes relate to the construction, extensive renovation, and change-in-use of buildings.^[3] There are no proposals to incorporate non-building design elements (e.g., millwork, finish materials, fixtures and non-building equipment, colours and furniture) nor the maintenance and operations of buildings into the Building Code. Barrier-free “retrofits” of existing buildings (where no renovations are planned) would not be required either.

The OHRC recognizes that accessibility requirements have been enhanced with each new edition of the Building Code regulation and welcomes the latest proposal for new barrier-free design requirements.

The OHRC supports continuing the “objective-based” approach first introduced in the 2006 Building Code. This approach sets out the rationale underlying the technical provisions, including barrier-free accessibility, and encourages innovation and flexibility in meeting requirements. This permits the possibility of adapting the accessibility requirements to unique circumstances in order to achieve the same objective with alternative solutions. This may be particularly helpful where a requirement might otherwise be unfeasible in the circumstances.

The OHRC has a number of concerns about the proposed changes as well as additional recommendations for barrier-free requirements in the Building Code regulation:

As the OHRC has recommended in previous submissions, the Building Code regulation should set out basic human rights principles to help guide overall interpretation of the accessibility provisions including:

• Create no new barriers
• Design inclusively
• Identify and remove existing barriers
• Favour integration (inclusive design) over segregation
• Provide interim or next best measures where full accommodation is not feasible
• Consider and accommodate individual needs short of undue hardship by exploring solutions through a cooperative process that maximizes confidentiality and respect

​These principles are particularly important for the Building Code’s objective-based approach that encourages innovation and flexibility in meeting accessibility requirements.

• Extensive renovations in one area of a building should but do not necessarily trigger accessibility requirements in that area or another area if, for example, there is no connecting barrier-free path of travel. The primacy of the Human Rights Code expects harmony across different legislated requirements.
• Current and proposed accessibility requirements only come into effect when the obligated organization decides to undergo new construction, extensive renovation or change-in-use of a building or one area of a building. There should also be at least some “retrofit’ requirements, as well as incentive supports to bring about barrier-removal within specific timelines.
• Suites’ 300m² or smaller should not be exempt from accessibility requirements for extensive renovations unless technical unfeasibility or an adverse effect on the primary intended use of the space can be shown.
• Two-storey businesses and personal services should only be exempt from elevator requirements if the same services are offered on both floors, Two-storey multi-unit residential buildings 600m² or larger should not be exempt. New two-storey multi-unit residential building construction less than 600m² should not be exempt. Industrial buildings with multiple storeys should not be exempt from elevator requirements. Exemptions for elevator requirements should only apply if technical unfeasibility or an adverse effect on the primary intended use of the space can be shown.
• The proposed increase in proportion from 10 per cent to 15 per cent of accessible suites in multi-residential buildings may be inadequate.
• There should be more “adaptable” accessibility requirements.
• Visual fire alarms and visual emergency notification systems should be required wherever a fire alarm or emergency notification system is required; all building types.
• There should be retrofit requirements for medium to large size restaurant chains to phase in at least one universal accessible washroom on a barrier-free path of travel to an accessible main entrance.
• Air quality standards of the type proposed by the Standards Development Committee in 2009 are important for persons with environmental disabilities. Progress should be made to examine and address them in regulation.
• The proposed changes should include requirements for captioning and descriptive audio systems in movie theatres.
• Either the Building Code or AODA regulations should set out maintenance, repair and out-of-service notification requirements for the accessibility features of a building.
• Exemptions for technical unfeasibility, heritage, cultural, and natural protection must have regard for human rights law principles.
•  The OHRC supports the AODA Alliance’s call on the Government to have the barrier-free provisions of the Building Code also fall under the AODA. This would allow AODA regulatory requirements like procurement, barrier identification and removal planning, reporting, compliance penalties and other general provisions to apply equally to the indoor and outdoor built environment.

Government proposed changes

Extensive renovations in existing buildings

The accessibility requirements of the current Building Code apply only to “extensive” renovations (e.g., removing load-bearing walls, floors, etc.) in suites that are larger than 300m² and where there already exists a barrier-free path of travel from that suite to the exterior. Moreover, requirements apply only to the area or suite undergoing renovation, and not to the entire building.

The proposed changes would now extend only some of the accessibility requirements (wider door widths, lever handles, visual cues for glass doors and ambulatory (rather than barrier-free) washroom stalls) to apply to suites’ 300m² or smaller as well as to larger suites not located on barrier-free paths of travel.

This is an improvement over the current Building Code regulation. However, the OHRC is concerned that barriers will be re-created and an opportunity missed to make suites accessible while located on inaccessible paths of travel that might become barrier-free in the future. This is a problem of harmonization where the application of some requirements depends on the application of others, perpetuating barriers.

All relevant barrier-free requirements should apply to the area and elements in question and should not depend on the level of accessibility in another area. Moreover, extensive renovations in one area or suite should trigger “retrofit” requirements for a barrier-free path of travel to that suite.

See the section on “Harmonization” below.

Barrier-free path of travel (common access and circulation)

The proposed changes would improve on existing requirements and include wider doorways, reduced ramp slopes, power-door rough-ins along all barrier-free paths of travel, tactile walking surface indicators and barrier-free path of travel to roof spaces where public amenities are provided.

The turning space proposed would allow a 90-degree turn by users of manual chairs, though users of electric wheelchairs and scooters, for example, may have to make a T-turn. This proposal is based on research showing that most users of wheeled mobility devices use manual chairs.

Consideration should be given to require sufficient space to accommodate 90-degree turns for manual and power wheeled mobility devices in all Group B buildings (all divisions, detention, care and treatment, care) unless it is not technically feasible in the circumstances.

Vertical access (elevators)

The proposed changes would require a barrier-free path of travel between storeys in a broader range of buildings and occupancies. However, there are still many exemptions.

The proposed changes would exempt two-story buildings or buildings less than 600m² that are residential, business or personal services.

Two-story restaurants, bowling alleys, licensed beverage establishments, and childcare facilities are only exempt from elevator requirements if they offer the same services on both floors. Similarly, other two-storey businesses and personal services should only be exempt if the same services are offered on both floors.

Two-storey multi-unit residential buildings 600m² or larger should not be exempt. New two-storey multi-unit residential building construction less than 600m² should not be exempt.

Barrier-free paths of travel between storeys in open air assembly places such as outdoor bleachers and amusement parks are also exempt (grandstand arenas such as baseball stadiums are covered).

Industrial buildings with multiple storeys are, but should not be, exempt; otherwise, this potentially restricts the rights of employees with mobility disabilities from accessing the workplace and could lead to claims under the Human Rights Code.

Exemptions should only be provided on a case-by-case basis where it can be shown that installing an elevator is technically unfeasible or would adversely affect the primary intended use of the space. Otherwise new construction and extensive renovation should be designed accessibly or it should not be permitted.

Visitable suites in multi-unit residential buildings

The proposed changes would require all suite entrances to have rough-ins for power doors. Building entrances must be equipped with power doors.

The proposed changes would also increase, from the minimum 10 per cent to a minimum 15 per cent, the requirement for both rental and condo ownership buildings to have a barrier-free path of travel through the suite entrance door to at least one bedroom on the same level, as well as to one bathroom. This change should also require that the kitchen be on the same barrier-free path of travel.

The proposed changes would also require barrier-free suites to be dispersed throughout the building and proportionally reflect suite sizes and types.

The OHRC is concerned that the increase in proportion of accessible suites from 10 per cent to 15 per cent is inadequate. While this proportion may provide sufficient choice when new buildings are initially occupied, the rate of change in tenancy and condo re-sale will likely significantly limit that choice. New construction and renovation at this rate will continue to create and perpetuate barriers.

This class of requirements might be renamed “visitable and liveable”, or similar, to recognize that these changes benefit inhabitants as well.

Adaptable design and construction

The proposed changes would require that kitchen walls, in multi-unit residential buildings and in single family houses, have sufficient loading capacity to support cupboards and counters at a range of heights. The current Building Code already requires sufficient loading capacity for grab bars in main washrooms.

There should be more requirements for adaptable design elements. New construction of condo units and single family houses should be adaptable for buyers with disabilities who might wish to reconfigure floor plans to support their accessibility needs. Multi-level apartment and condo units and single family houses should have adaptable design elements that would permit future installation (and removal) of elevators, stair lifts and / or other mechanisms to allow for a barrier-free path of travel between storeys.

Visual fire alarms

The current Building Code regulation requires visual fire alarms in a wide variety of public spaces including within assembly and other type buildings. The proposed changes would require that all hardwired smoke alarms have a visual mode, including in single-family houses, with one on every level and in each bedroom. Residential apartment building suites would require rough-ins for visual fire alarms.

This requirement should be more clear and comprehensive: wherever a fire alarm or other emergency notification system is required, in any building type (including in apartments, condos and single family houses), the device should also have a visual mode. Furthermore, persons with hearing or other disabilities should not be required to pay any additional costs not required of persons without disabilities.  

The OHRC further recommends that consideration be given to implementing retroactive requirements for visual fire alarms and other visual emergency notification systems in certain priority building types.

Visual fire and emergency notification is a matter of health and safety, and potentially life and death, and would support the very high standard for the duty to accommodate persons with hearing and other disabilities under the Human Rights Code as recognized by the courts. These requirements should harmonize between the Building Code, AODA and Fire Code regulations where appropriate.

Washrooms

The current Building Code regulation has various requirements for accessible washrooms in public areas of buildings. They must be situated on a barrier-free path of travel and at least one per building must be an accessible universal toilet room.

The proposed changes would update a number of technical features, require power doors for entrances of all accessible washrooms, and allow t-shaped turning spaces as an option. It would also require a universal toilet room for every three floors, with sufficient space for an adult-size change table.

The proposed rationale indicates universal toilet rooms will benefit persons who use mobility devices, caregivers and families with small children. A universal toilet room would also benefit some transgender individuals. It may also help to address gender imbalance that sometimes results in line-ups at gender segregated female washrooms.

The requirements for all buildings to have accessible universal toilet rooms and accessible segregated washrooms supports the duty to accommodate different groups protected under the Human Rights Code based on the grounds of disability, family status, sex, gender identity, and gender expression.

All “visitable” suites in multi-unit residential buildings should include at least one main washroom that would meet a t-shaped turning space requirement for a wheeled mobility device, with rough-ins for power door operators, and be located on a barrier free path of travel from the main entrance.

New construction, extensive renovations or change-in-use for restaurants should also require at least one accessible universal washroom on a barrier-free path of travel from an accessible main entrance. The requirement should apply whether or not the restaurant is a stand-alone building, or, for example, within a shopping centre or commercial building.

Use of guidelines and resource materials

The Standards Development Committee had proposed non-building design elements such as contrast, colour, glare, noise, and furniture placement. The current proposed changes indicate these elements fall outside the scope of the Building Code, and would be difficult to enforce, but could be set out as best practices in non-regulatory guidelines.

These design elements are important to overall building accessibility. If not in the Building Code regulation, then they should be addressed elsewhere under AODA regulation.

Other changes are also proposed for the Building Code’s Appendix Notes including a broadened understanding of accessibility beyond wheeled mobility devices as well as new design concepts.

Other technical and administrative changes

The propose changes would require barrier-free access to public pools, spas and locker rooms including their washrooms and showers. It should be made clear that all relevant accessibility provisions apply to fitness centres as well.

The proposed changes would expand clearance dimensions to parking garage entrances, spaces and aisles as well as loading zones.

The proposed changes would also require expanded dimensions for accessible seating spaces (such as in theatres), dispersed accessible seating to provide a choice of viewing location, storage space for mobility devices, and at least one companion seat adjacent to accessibility seating.

Other proposed changes include clarifications for guards at landings, ramps versus sloped floors, and barrier-free showers where groups of showers are provided.

The proposed changes would also reference new external standards for wood-burning appliance emissions, as well as heating, cooling, and ventilation design. It should be recognized that improvements to air quality will help persons with environmental disabilities.

The proposed changes, however, appear not to address other barriers related to air quality identified under section 8.2 of the Standards Development Committee’s 2009 initial proposed standards. The impact of interior air quality on persons with environmental disabilities was a serious concern raised during the OHRC’s public consultation on rental housing discrimination and has been identified in the OHRC’s new Policy on Human Rights and Rental Housing.^[4] These are important issues and progress should be made to examine and address in regulation the impact of air quality on persons with environmental disabilities.

Issues not addressed in the proposed changes

Harmonization

The Ontario Human Rights Code has primacy over the Building Code and the AODA. This requires harmonization between laws and standards so they work effectively together to remove barriers, design inclusively and meet the duty to accommodate persons with disabilities.

The OHRC is concerned about the discord that can arise between different legislative requirements. For example: new accessibility standards, governed by AODA outdoor spaces regulations, do not require accessible parking lots (new construction or extensive renovation) unless there already exists a barrier-free path connecting the parking lot to a barrier-free building entrance, governed by Building Code regulations.

There can be discord between current or proposed requirements within the Building Code as well. For example, extensive renovations in one area or suite of a building, such as an accessible main entrance, would not necessarily trigger the requirement to make exterior or interior-connected paths of travel accessible.

Similarly, if a condo owner made extensive accessible renovations to their unit, this would not trigger a Building Code obligation on the condo corporation to meet requirements for an interior barrier-free path of travel from that unit to an accessible main entrance.

All relevant barrier-free requirements should still apply to the area or suite in question, and should not depend on whether accessibility features are in place in another area. Moreover, extensive renovations to one area should trigger “retrofit” accessibility changes in a secondary area that would otherwise impede access to the first area.

The OHRC recognizes that different obligated organizations may be responsible for different areas of a building and this recommendation may result in an adverse impact on an organization that had otherwise not intended to undertake renovations. Under the Human Rights Code, the organization impacted would have a duty to accommodate but might be able to claim undue hardship with proof.

While there may be a sound rationale for incorporating new accessibility standards and changes into the existing Building Code regulation, harmony with other important general provisions of the AODA and its regulations should not be lost. General provisions of the AODA and its regulations should apply to AODA-obligated organizations that also have responsibility for meeting the accessibility provisions of the Building Code regulation.

The general requirements of the AODA and its regulations include accessible procurement, the development of plans for identifying and removing existing barriers as well as related reporting, public consultation on proposed standards, periodic standards reviews, compliance provisions and penalties. The barrier identification and removal planning requirement is especially important given that the Building Code requirements do not apply retrospectively. This is in keeping with the recommendation already made to the Government by the AODA Alliance.^[5]

Other elements proposed by the Standards Development Committee

In addition to the elements above, the Standards Development Committee also proposed many other building-related accessibility standards that do not appear to be part of the proposed changes. These include: building maintenance, acoustics, end user controls and operating mechanisms, interior lighting, detectable indicators, floor surfaces, overhanging and protruding objects, rest areas, signage, information / visual display systems, wayfinding, public access systems, exhibition and display systems, emergency, security and other notification systems (like doorbells), drinking fountains, elements specific to office and work areas, libraries, cafeterias and restaurants, courtrooms, stages, waiting and queuing areas, service counters, balconies, terraces and porches, patios, adaptive systems for assembly, windows, community mailboxes, amusement parks, play areas, fitness rooms, transit stations, bus shelters, bus stops, among others.

This broad range of building-related elements is important for a barrier-free society. If not in the Building Code regulation, then these elements should be addressed elsewhere under AODA regulation (some may now already be) as well as in guideline materials. Some areas, like accessible restaurants and cinemas have already undergone scrutiny by the OHRC and the Human Rights Tribunal of Ontario.

Restaurants

The types of elements identified by the Standards Development Committee would be helpful for addressing many of the issues raised during the OHRC’s 2004-06 inquiry into restaurant accessibility.^[6] In addition to accessible washrooms, entrances, paths of travel, these include random access layout, cash register counters, tray rails, food displays, beverage dispensers, fixed and non-fixed seating, service lanes and directional indicators, among other accessibility requirements already in the Building Code.

As with other types of buildings, accessibility requirements for restaurants only come into effect when the obligated organization decides to undergo new construction, extensive renovation or change-in-use of the suite or building.

The OHRC recommends “retrofit” requirements also be set out (either in the Building Code or under AODA regulation) that would require medium to large size restaurant chains to phase in, within a specified timeline, at least one universal accessible washroom on a barrier-free path of travel to an accessible main entrance. This would further help meet the objectives of the OHRC’s 2004-06 inquiry. Incentives should also be put in place to encourage smaller restaurants to implement accessibility features as well.

Also see the sections on “washrooms” above, and “retrofit” below.

Cinema captioning and descriptive audio

As identified in past submissions, the OHRC continues to be concerned that there are no proposed changes to require captioning and descriptive audio systems in movie theatres. Cinema captioning was the subject of complaints that were settled with public interest remedies at the Human Rights Tribunal of Ontario. These types of technologies support the duty to accommodate the needs of persons with hearing and vision disabilities under the Human Rights Code.

There is precedent to have requirements for these types of technologies set out in the Building Code regulation: section 3.8.3.7 currently requires assistive listening systems in buildings of assembly occupancy, all classrooms, auditoria, meeting rooms and theatres with an area of more than 100 m2 and an occupant load of more than 75.

There should be a requirement for captioning and descriptive audio systems in cinemas set out either under the Building Code regulation or elsewhere under AODA regulation.

Routine maintenance and repair

The proposed changes indicate that maintenance and operations of the accessible elements of buildings are not to be incorporated into the Building Code regulation.

Current AODA regulations already have maintenance, repair and out-of-service notification requirements for other standards such as public transit. These types of requirements should apply to accessible building elements as well including elevators, power door openers, accessible washrooms and barrier-free paths of travel.

Again, if not in the Building Code regulation, then this requirement should be addressed under AODA regulation.

Exemptions for technical unfeasibility, heritage, cultural, and natural protection

A number of the proposed changes as well as existing requirements in the Building Code include exemptions in circumstances where accessibility standards are either not technically feasible or they would have an adverse effect on the natural, cultural, or heritage value of a protected facility.

These types of exemptions cannot be considered absolute or granted outright. They must be considered in light of human rights law. Obligated organizations would have to show they have a bona fide and reasonable basis for claiming a prescribed accessibility requirement is technically unfeasible or would adversely affect the essential nature of a protected heritage, cultural or natural element in the circumstances. The organization would have to further show there is no viable alternative to achieve the intended goal of the accessibility requirement. The most ideal viable alternatives must first be considered and implemented followed by the next best option that would meet the intended goal of the accessibility requirement as much as possible.

It is not evident that an organization could claim undue hardship as a defence for failing to implement a prescribed or alternative accessibility requirement under the Building Code. While undue hardship on the basis of cost, or health and safety is available as a possible defence to an individual accommodation request under the Human Rights Code, the Building Code has no such defence. Its requirements are prescriptive and preventative (not retroactive) with a purpose of avoiding systemic barriers and designing society inclusively going forward.

Exemptions for technical unfeasibility would generally be very difficult to defend, particularly for new construction. Exemptions for heritage, cultural and natural protection might only be defensible as a last resort and be limited to only what is objectively essential for preserving particular elements.

Retrofit

The proposed changes and existing provisions of the Building Code regulation only apply when an obligated organization decides to undergo new construction, extensive renovations, or change-in-use. There are no changes proposing retrofit requirements.

As raised in past submissions, the OHRC finds this is not in keeping with the stated purpose under Section 6(6) of the AODA to both prevent and remove barriers.^[7] The OHRC calls on the Government to include at least some retrofit requirements; otherwise, the goal of a barrier-free province will not be met by 2025.

The OHRC was supportive of the Standards Development Committee’s progressive ideas for addressing existing barriers through retrofit, including prioritizing elements for retrofit such as main entrance doors and washrooms in order to provide minimum access to services and facilities. Staggering implementation of retrofit requirements over time, and starting with essential public services, larger organizations and higher-use facilities is also a fair and logical approach to make progress. These types of retrofit requirements could be set out under AODA regulation if preferable.

Retrofit requirements could aim for compliance to the highest possible level of the Standard that can reasonably be achieved in the circumstances, without causing undue hardship. Barrier removal plans could identify steps for eventual full compliance with the standards. Those responsible should not be permanently absolved of the potential for compliance at a future date.

This offers a balanced and flexible approach that would help make sure progress continues towards the 2025 target. It would also help those with the obligation to consider and implement individual accommodation requests to retrofit facilities, short of undue hardship, under the Human Rights Code.

Additional incentives, including financial and other resources, would also help support mandatory or voluntary retrofit for some if not all of the accessibility standards. For example: tax and fee rebates or grants would help home buyers or businesses make their premises more “visitable” for persons with disabilities. Similar to energy audits, resources might be made available for barrier audits. With the results in hand, many might be more likely to make accessibility changes to address changing needs such as for families with frail older members or children with disabilities.

Restaurant accessibility might be one good area to start with retrofit requirements and incentives. See the OHRC’s recommendation under “Restaurants” above. Another critical area would be visual fire alarms. Also see “Visual fire alarms” above.