Roger P Gervais
182
Poplin Street
Manotick,
ON, K4M 0G9
December
14, 2019
Mr Frank Lohmann
Manager, Codes Development System
Codes Canada
National Research Council of Canada
Mr Lohmann;
Further to the 25th meeting (2015-25) of the Canadian
Commission on Building and Fire Codes (CCBFC) Executive Committee that I
attended on December 11, 2019 at 1:00pm, I would like to raise my ongoing
concerns with the chronic delays in completing the final version of the
document entitled “CCBFC POLICY PAPER Accessibility in Buildings”. This policy
paper was first mentioned in June, 2016 in Calgary during the 30th
meeting of the CCBFC held on June 27th & 28th. The first draft
of this Policy Paper on Accessibility, dated April 20, 2017 (co-authored by
Sarah Gibb, Collinda Joseph, Marc Fortin and yourself) brought attention to
many points that I’d made in my original Code Change Request 964 submission and
attached documents, in addition to my numerous emails to CCBFC/Codes Canada/NRC
members since 2015 and comments made during teleconferences and in-person
meetings that I’ve participated in. I’ve also commented on my concerns with
this draft document during its public review this past summer, comments which
were emailed to you and Brigitte Potvin on July 23, 2019 as a follow-up to our
meeting on July 19, 2019.
My most significant concern is the fact that Code Change
Request 964 (VisitAbility of new housing) has gone through nearly an entire
five-year code cycle yet it won’t be considered for the 2020 edition of the
National Building Code of Canada because of chronic delays. Of equal concern
are matters that were brought up in the agenda package for the 25th
meeting of the Executive Committee (2015-25 Div A-C), specifically:
Page 13: In the Executive Committee Work Plan, Code
Change Request 964 is identified as a CCBFC and Executive Committee priority
yet the overall completion of this CCR is only 45% as of August 27/19, more
than four years since my original submission on June 30, 2015 and more than
three years after the initial mention of a Policy Paper on Accessibility in
late June 2016.
Page 46: It appears that the final version of the
Policy Paper on Accessibility is anticipated to be received by the CCBFC in
April 2020 but I’m not very confident that this will materialize given the
chronic delays with this policy paper (and my CCR), in part due to the
Provincial/Territorial Policy Advisory Committee on Codes (PTPACC), Standing
Committees, Task Groups and Working Groups’ reviews of the various drafts of
this document that have delayed its completion in a timely manner.
I’m very concerned that the CCBFC, Codes Canada and the
National Research Council of Canada are in violation of multiple human rights
documents, specifically:
1 - Canadian Charter of Rights and Freedoms (April
17, 1982):
Section 15 Equality Rights for Canadians with disabilities
(which were delayed to April 17, 1985) have been ignored in new housing for
more than three decades due to multiple building code cycles that have
perpetuated discriminatory building code policy where new housing is exempt
from barrier-free design requirements (due to the exemptions found in Part 3
and Part 9 of the NBC).
2 - United Nations Convention on the Rights of Persons
with Disabilities (March 11, 2010):
Article 9 of the CRPD relates to Accessibility, which
includes housing, yet our National Building Code of Canada has also ignored
this UN Convention for more than 9 years seeing as Canada ratified the CRPD and
is bound to its implementation across all levels of government in Canada.
3 - Accessible Canada Act (June 21, 2019):
“The Accessible Canada Act applies to the federally
regulated private sector which includes banking, transportation and
telecommunications sectors, as well as the Government of Canada, Crown
Corporations and Parliament.” (ESDC News Release, July 11, 2019). Barriers
to accessibility must be identified, removed and prevented in the built
environment, which includes preventing architectural barriers in new housing
(barriers that exclude hundreds of thousands of Canadians with mobility
disabilities and millions of Canadians with reduced abilities in physical
mobility). Given the fact that the 2020 National Building Code of Canada will
likely continue with the exemption of housing in Parts 3 and 9, my assumption
is that the CCBFC/Codes Canada/NRC will effectively be in contempt of Parliament
once the 2020 update of the National Building Code of Canada is published with
the exemptions still in effect.
4 – National Housing Strategy Act (June 21, 2019):
The National Housing Strategy Act recognizes the Right to Housing
yet this right to housing is denied to hundreds of thousands of Canadians with
mobility disabilities and millions of Canadians with reduced abilities in
physical mobility within the majority of new housing. The United Nations
Special Rapporteur on Adequate Housing, Ms Leilani Farha, has been very clear
with the Canadian government about the expectations involved in realizing the
right to adequate housing, and some of her reports to the UN Human Rights
Council have been very clear in also identifying the expectations for the right
to housing for vulnerable individuals, which include persons with disabilities.
My significant concerns with the right to adequate housing for Canadians with
disabilities lead to a Complaints Form being submitted to the United Nations
Office of the High Commissioner on Human Rights on January 5, 2019. I’ve also
been in contact with the United Nations Special Rapporteur on the Rights of
Persons with Disabilities (Ms Catalina Devandas) to express my concerns with
the multiple violations of the CRPD as it relates to new housing in Canada,
condoned systemically by ongoing discriminatory building code policy.
Another concern is the significant risk of class-action
litigation that could be borne by the CCBFC/Codes Canada/NRC in the event that
Canadians with disabilities exercise their Constitutional right to seek remedy
for the violation of their Equality Rights in new housing dating back to April
17, 1985 (due to multiple building code cycles that have ignored their
Charter-enshrined rights). I mentioned this litigation risk in 2015 as part of
my Code Change Request, again ignored, but a written record exists which
identifies this significant risk of class-action litigation (which I’d be
compelled to acknowledge if under subpoena).
One final concern is the fact that the CCBFC/Codes
Canada/NRC are ignoring very clear research by Canada Mortgage and Housing
Corporation, our national housing authority with decades of experience and
knowledge in accessibility of housing. The societal and sustainability benefits
of removing barriers in the planning stage of new housing, in addition to human
rights, are well known to CMHC and have appeared in a number of their published
reports. “Cost of Accessibility Features in Newly-Constructed Modest Houses”
(November 2016, report #68668) and “Cost of Adaptability and Accessibility
Features – Existing Modest Houses” (September 2019, report #69611) are two
examples of recent CMHC research that add to the existing evidence in my
original submission on June 30, 2015 and highlight their expertise and
knowledge. These documents would be in addition to the countless others that
I’ve emailed in these nearly five years of interactions with the CCBFC/Codes
Canada/NRC.
To conclude, I would like to reiterate my strong objection
to a 2020 update of the National Building Code of Canada that would continue
with the exemption of new housing from barrier-free design requirements in NBC
3.8.2.1. The violation of the above-mentioned legislation would not only be
unacceptable but likely lead to a significant settlement for plaintiffs in a
class-action lawsuit.
Respectfully Yours,
Roger P Gervais
