Proposed AODA Built Environment Standard for public spaces released for public consultation and review
The Built Environment Standard is the final Standard to be enacted under the Accessibility for Ontarians for Disabilities Act, 2005 (“AODA”). The first Standard under the AODA, the Customer Service Standard, is already in force as are certain provisions of the Integrated Accessibility Standards, which currently includes the Information and Communication Standard, the Employment Standard and the Transportation Standard.
The purpose of the Built Environment Standard (the “Standard”) is to increase accessibility for people with disabilities in public spaces and buildings. Recently, the Ministry of Community and Social Services released the draft Standard for public spaces, which will be included in the Integrated Accessibility Standard.
The proposed Standard for “public spaces” includes requirements for the following spaces:
- Recreational trails and beach access routes
- Outdoor public use eating areas
- Outdoor play spaces
- Exterior paths or travel
- Accessible parking
- Service counters, fixed queuing guides and waiting areas.
The “Redevelopment” Section
The Standard requirements apply to new and “redeveloped” spaces. The Standard defines “redeveloped” as “planned significant or substantial changes” to public spaces but does not include “maintenance activities”.
The Standard defines “maintenance” as activities meant to keep existing public spaces and elements in existing public spaces in good working order or to restore the spaces or elements to their original condition.
The definition of maintenance follows established patterns in legislation and jurisprudence in labour relations & occupational health and safety which determine what constitutes “construction work,” as opposed to “maintenance work”.
As such Optimal’s AODA experts can see room under the “redevelopment” category to become a source of litigation over this term and its lack of clarity.
This will also become contentious relative to enforcement activities on the part of the Ministry as they will need to show a failure of compliance where the owner of the public space may argue this is inapplicable because the company was undertaking maintenance and not a “redevelopment”.
The Standard also makes changes to the requirement to file an accessibility report. Currently, the report would need to be filed with the Ministry of Community and Social Services every year.
Under the changes proposed the Government of Ontario and the Legislative Assembly would still be required to file an accessibility report annually, but public sector organizations will be required to file every two years and large private sector organizations every three years. The Standard also makes changes to the Transportation Standard and the Information and Communication Standard.
The Trend OPC has seen which will become more contentious
An issue likely to be one of the most contentious is the lack of any clarity in the proposed Standard with respect to the division of responsibility between an owner and a tenant. There is no clarity as to who will be responsible for compliance. By virtue of not having clarity about this the Ministry has left open the opportunity for owners and tenants to quarrel at best and launch lawsuits as the worst case scenario. At OPC we have been posed this question by a number of property owners and tenants alike over the last 2 years. As it stands now it is clear that when one party has insufficient authority to comply without the other party’s permission or assistance, but both may be held liable for non-compliance; a very difficult result will ensue.
This may also result in parties contracting out their responsibility & therefore passing authority between them to comply with applicable legislation. We have recommended to our clients with tenancy agreements to review their contract documents to ensure responsibility and authority is clearly delegated or retained.
This lack of clarity may lead to serious problems with compliance and enforcement. An illustration is where small organizations are exempt from many of the requirements.
- If the tenant is a small organization (most private organizations with at least one but fewer than 50 employees in Ontario) and the owner is a large organization, does the Standard apply?
- What if the Standard technically applies to the large organization but the small organization alone has authority to implement compliance measures? What would happen if the small organization-tenant does not want to pay for measures that apply only to the owner, or refuses to remain closed longer for renovations so the owner can implement compliance measures?
We recommend all employers post feedback ASAP to the Ministry in particular about these areas of contention and lack of clarity
To obtain a summarized copy of the draft or for a full explanation of how the draft Build Code will impact your business please contact us at Optimal AODA@OptimalPerformance.ca or 1 888 768-2106