By: Jessica Young and Jeremy Schwartz
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 has 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” Enigma
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, for example, by painting or through minor repairs.
The definition of maintenance follows established patterns in legislation and jurisprudence (i.e. labour relations and occupational health and safety) which determine what constitutes “construction work,” as opposed to “maintenance work,” on similar considerations.
As such, we expect that determinations of what constitutes “redevelopment” under the Standard will follow similar, persuasive authorities. That said, this is likely to be a heavily litigated issue given the zero sum game implied – either you have a “redevelopment” and so must expend time and money to comply, or you don’t.
This is also likely to become a contentious issue in respect of enforcement activities. For example, if a company were charged with failing to comply, it could argue in appropriate circumstances that the Standard was 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.
Who Bears the Compliance Responsibility?
In our view, one issue likely to be one of the most contentious is the lack of any clarity in the proposed Standard in respect of the division of responsibility between an owner and a tenant. It is unclear who would be responsible for compliance. Intuitively, the party with control over the space and the power to comply is likely to be held responsible. However, the Standard does not draw such distinctions.
In other words, it is possible that one party has insufficient authority to comply without the other party’s permission or assistance, but both may be held liable for non-compliance – an absurd result.
This also raises the spectre of parties attempting to contract out of responsibility, by passing authority between them to comply with applicable legislation. Parties to tenancy agreements should review their contract documents and templates to ensure responsibility and authority is clearly delegated or retained, as appropriate.
This lack of clarity could also lead to serious problems with compliance and enforcement. For instance, 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 such measures that apply only to the owner, or refuses to remain closed longer for renovations so the owner can implement compliance measures?
Have Your Say
The draft Standard is open for public review and comment until October 1, 2012. View a copy of the draft Standard or let your voice be heard.