ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
1929 Bayview Avenue
Toronto, Ontario M4G 3E8
Email: Twitter: @aodaalliance
Visit: www.aodalliance.org
BRIEF TO THE ONTARIO GOVERNMENT ON THE AUGUST 15, 2012 POSTED DRAFT REGULATION TO CREATE A PUBLIC SPACES BUILT ENVIRONMENT ACCESSIBILITY STANDARD
OCTOBER 4, 2012
TABLE OF CONTENTS
Introduction 1
a) General 1
b) Who is the AODA Alliance? 1
c) Summary of this Brief 2
d) Two Other Submissions to the Government that we Endorse 3
e) Flagging an Important Preliminary Concern 5
I. RECOMMENDATIONS REGARDING THE DRAFT REGULATION'S
EXISTING PROVISIONS ON THE BUILT ENVIRONMENT IN
PUBLIC SPACES 6
1. General 6
2. Definitions, Application and Schedule 6
3. Application 8
4. Recreational Trails and Beach Access Routes, General Trails 10
5. Technical Requirements for Recreational Trails 12
6. Technical Requirements for Beach Access Routes 15
7. Exceptions to the Requirements for Recreational Trails and
Beach Access Routes 17
8. Outdoor Public Use Eating Areas 20
9. Outdoor Play Spaces 21
10. Exterior Paths of Travel 22
11. Exterior Paths of Travel, Stairs 23
12. Exterior Paths of Travel, Accessible Pedestrian Signals 25
13. Exterior Paths of Travel, Rest Areas 27
14. Accessible Parking 29
15. Obtaining Services 33
16. Maintenance 34
II. RECOMMENDATIONS REGARDING PUBLIC SPACES
ACCESSIBILITY ISSUES THAT THE DRAFT REGULATION DOES
NOT ADDRESS 35
17. Snow Removal 35
18. Accessible Roundabouts 35
19. Tactile Walking Surface Indicators in Major High-Traffic
Public Spaces 36
20. Islands in the Middle of Street Crossings 37
21. Construction in the Area of Public Paths and Sidewalks 38
22. Power Lifts in Public Spaces 39
III. RECOMMENDATIONS REGARDING SUNDRY PROVISIONS IN THE
DRAFT REGULATION THAT DO NOT CONCERN BUILT
ENVIRONMENT IN PUBLIC SPACES 39
23. Accessibility Reports 39
24. Proposed Amendments to Accessibility Requirements in Existing
2011 Integrated Accessibility Regulation Unrelated to Built
Environment Accessibility 41
APPENDIX 1 - AUGUST 29, 2012 LETTER FROM THE AODA ALLIANCE TO
COMMUNITY & SOCIAL SERVICES MINISTER JOHN MILLOY 45
APPENDIX 2 - POSITION PAPER ON ACCESSIBLE ROUNDABOUTS BY
ORGANIZATIONS CONCERNED WITH THE RIGHTS OF
PERSONS WITH VISION LOSS 54
APPENDIX 3 - LIST OF TOPICS THAT THE GOVERNMENT HAS ENTIRELY
DROPPED FROM THE DRAFT REGULATION THAT WERE
RECOMMENDED FOR PUBLIC SPACES IN THE FINAL
PROPOSAL OF THE BUILT ENVIRONMENT
STANDARDS DEVELOPMENT COMMITTEE 58
APPENDIX 4 - LIST OF RECOMMENDATIONS IN THIS BRIEF 59
58
Introduction
a) General
This brief provides our feedback on the Ontario Government's August 15, 2012 draft accessibility standard regulation. That draft accessibility standard is primarily intended to address barriers facing persons with disabilities in public spaces of the built environment. The draft regulation also includes some proposed amendments to the 2011 Integrated Accessibility Regulation (IAR). The IAR was enacted under the Accessibility for Ontarians with Disabilities Act (AODA) to address barriers against persons with disabilities in transportation, employment and information and communication.
The draft regulation on which this brief comments was posted by the Ontario Government on its website. The August 15, 2012 draft regulation, as well as earlier proposals for the Built Environment Accessibility Standard, and all our major public activities in this area, are all available on our website at http://www.aodaalliance.org/strong-effective-aoda/20120914.asp
We commend the Government for bringing forward the draft Public Places Built Environment Accessibility Standard for public comment, even though it did so quite belatedly. We continue to await the comprehensive Built Environment Accessibility Standard that the Government promised, that will amend the out-dated and incomplete Ontario Building Code's accessibility provisions.
b) Who is the AODA Alliance?
The AODA Alliance is a voluntary non-partisan coalition of individuals and organizations. Its mission is:
"To contribute to the achievement of a barrier-free Ontario for all persons with disabilities, by promoting and supporting the timely, effective, and comprehensive implementation of the Accessibility for Ontarians with Disabilities Act."
To learn about us, visit: http://www.aodaalliance.org
Our coalition is the successor to the Ontarians with Disabilities Act Committee. The ODA Committee advocated for over ten years for the enactment of strong, effective disability accessibility legislation. Our coalition builds on the ODA Committee’s work. We draw our membership from the ODA Committee's broad grassroots base. To learn about the ODA Committee's history, visit: http://www.odacommittee.net
We have taken a lead role in advocating for the enactment of strong and effective accessibility standards in Ontario. Among other things, we have led the campaign to get a strong and effective Built Environment Accessibility Standard enacted in Ontario. For example, Premier Dalton McGuinty's August 19, 2011 election pledge to Ontarians with disabilities to promptly enact the Built Environment Accessibility Standard was set out in a letter to the AODA Alliance, which is available at http://www.aodaalliance.org/strong-effective-aoda/090220111.asp
c) Summary of this Brief
We summarize our feedback in this brief as follows:
1. The draft regulation identifies a helpful but incomplete range of recurring accessibility barriers that impede persons with disabilities in the built environment of important public spaces in Ontario. It does not include a number of measures that were recommended by the Built Environment Standards Development Committee. Appendix 3, at the end of this brief, sets out a list of these, prepared by the Quadrangle Architects organization. The draft regulation needs to be expanded to effectively address a number of recurring barriers that it does not now address.
2. The draft regulation wrongly excludes all small private sector organizations from having to comply with many if not most of its requirements, regardless of whether a small private sector organization (defined solely by the number of its employees) has the resources, revenues and capacity to meet more (if not all) of the draft regulation's requirements. The draft regulation needs to be revised, to extend all of its requirements to small private sector organizations that have the capacity to comply with them.
3. In a number of places, the draft regulation provides helpful technical standards. However, in a number of other important areas, the standard provides only vague requirements. These are hard to enforce. They are hard for organizations to implement with any assurance that they have fully complied.
4. In a number of places, the draft regulation only imposes a nebulous duty to consult with persons with disabilities, but with no actual substantive barrier-removal or prevention standards to meet. The draft regulation needs to be revised to incorporate more specific technical accessibility standards.
5. In a number of places, the draft regulation creates exemptions from or exceptions for its accessibility requirements that are too broad. They that are inconsistent with the strict "undue hardship" requirements of the Ontario Human Rights Code and, in the case of public sector organizations, the Charter of Rights. The draft regulation needs to be revised, to narrow these exemptions and exceptions, in order to make them consistent with the narrower "undue hardship" test.
6. The time lines in the standard are far too long. The draft regulation needs to be revised to shorten several time lines, and to provide different time lines tailored to each activity that the draft regulation addresses.
7. We are deeply concerned that this draft regulation only addresses new developments, or substantial redevelopments. Otherwise it leaves the many, many existing barriers in the built environment of public spaces in place to continue to impede persons with disabilities. The draft regulation should be revised, where possible, to extend its requirements to removing existing barriers, even where no redevelopment is underway, with time lines that are appropriate for those activities.
8. Even if this draft regulation were fully and faithfully complied with, Ontario would not ensure fully accessible public spaces by 2025, even in terms of new developments and redevelopments. As such, the draft regulation needs to be substantially strengthened.
9. We are very concerned about the draft regulation's proposed amendments to the 2011 Integrated Accessibility Regulation that have nothing to do with the built environment. The Government did not comply with the requirements in the AODA that must be followed before it can revise an existing accessibility standard enacted under the AODA.
In this brief, we offer a series of detailed and specific recommendations to address these concerns. These are divided into three groups. First, we offer recommendations concerning the draft regulation's existing provisions governing the built environment in public spaces. Second, we offer recommendations about aspects of the built environment in public spaces that the draft regulation now does not address. Third, we offer recommendations concerning sundry provisions in the draft regulation that do not pertain to the built environment in public spaces.
After all our recommendations, the brief includes three appendices that set out important supporting documents that the brief mentions. Appendix 4, at the end of this brief, gathers together in one place all the recommendations we offer.
Our brief does not specifically comment on some of the technical standards in the draft regulation. These technical standards require further scrutiny. We encourage the Government to act on the input from organizations within the disability community with specialized expertise in this area.
d) Two Other Submissions to the Government that We Endorse
We have neither access to, nor an opportunity to now review all the submissions to the Ontario Government on the draft regulation. However, we wish to take the opportunity to specifically endorse two submissions of which we are aware.
First, we echo and endorse the excellent October 1, 2012 submission to the Ontario Government on the draft regulation by the Ontario Human Rights Commission. The Commission is the Ontario Government's flagship organization for advising on accessibility requirements in the Ontario Human Rights Code. The AODA is meant to implement and buttress the Human Rights Code's accessibility requirements.
The Commission summarizes its valid concerns as follows:
"Standards focus only on prevention of new barriers going forward with no requirements to remove existing barriers
Amendments lack human rights principles to guide interpretation
Small organizations are exempt from many standards
Lengthy deadlines would permit new barriers in the interim
Exemption for “maintenance” activities appears too broad
No direct requirement to keep accessibility features in good working order
Where a change in elevation causes a barrier, no requirement for ensuring access, where feasible, to at least some portion or significant feature of a recreational trail, or beach with no constructed surface route
Beach access routes connected directly to roads and other non-prescribed amenities are exempt
Accessible signage requirements are vague
Play space requirements lack specific technical standards
No direct requirement to provide curb cuts and depressed curbs
Exterior paths of travel without a “functional” purpose are exempt
Employee and other speciality parking are exempt
Tenant and condo parking appear exempt
Parking lots unconnected to barrier-free paths of travel are exempt
Exemptions for heritage, endangered species and existing constraints are too broad and lack the proper legal tests for bona fide and reasonable requirements short of undue hardship as well as alternative accessibility requirements
Organizations not residing at the same location could now submit one accessibility plan jointly
Current audible call stop requirement for subway and commuter rail trains would be eliminated
Requests for accessible education and training library resources would now be restricted to students only
Other outdoor space elements previously proposed by the Standards Development Committee are not addressed such as street furniture, amusement parks and exterior pedestrian lighting."
We appreciate that the Ontario Human Rights Commission states in its submission to the Government that it generally shares our concerns regarding the draft regulation, set out in our September 20, 2012 draft of this brief. This final version of the AODA Alliance's brief includes all the concerns and recommendations that were included in our September 20, 2012 draft, on which the Commission favourably commented. This is a further reason why the Government should take very seriously the recommendations in our brief. The Human Rights Commission's submission states:
"The AODA Alliance is raising similar concerns in their draft submission dated September 20, 2012. The OHRC generally shares the AODA Alliance’s other concerns which include technical and other recommendations for snow removal, accessible roundabouts, tactile walking surface indicators in major high-traffic public spaces, islands in the middle of street crossings and construction in the area of public paths and sidewalks."
Second, we also endorse and echo concerns about the draft regulation's significant inadequacies that are set out in the similarly thoughtful and informative October 1, 2012 submission to the Ministry of Community and Social Services by Quadrangle Architects, an organization that says it has expertise in accessible design. Quadrangle's thoughtful submission offers these findings, which we endorse:
"In general, we find the DPS to be not broad enough, both in the number of features actually addressed, and in not adequately addressing a wide range of disabilities. Many items included in the AODA Final Proposed Built Environment Standard 2010 which are beyond the scope of the Ontario Building Code have been omitted.
In particular, we find the DPS to be lacking in the following elements:
Clearly defined dimensional requirements
Explanatory details and information
Clear definitions of terminology
Requirements that address a wide range of disabilities
Excessive exemptions and exclusions (even in instances where there would be no hardship in meeting the standards)"
The Quadrangle Architects submission concludes:
"We are eager to see Ontario become barrier-free by 2025. We believe the first step is to stop building new barriers today, and we believe that the draft standard in its current form will enable the construction of many new barriers."
e) Flagging an Important Preliminary Concern
We are very concerned that the Ontario Government did not release a detailed plain language summary or explanation for the draft regulation. On a number of occasions in the past, the Government has accompanied the release of so complex a document with a plain language guide that gives enough detail to enable members of the public to work through the proposal and give detailed input. The Government did not do so here. Its accompanying explanatory materials on its website are very general. They are insufficient to serve this purpose.