Letter to Frank Lohmann, Canadian Commission on Building and Fire Codes, Dec 14/19

                                                                                           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 25^th 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 30^th meeting of the CCBFC held on June 27th & 28^th. 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 25^th 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

Class-action litigation in housing by Canadians with disabilities

I wrote this in an email response on September 18th:

"I conservatively estimate tens of billions of dollars in damages if class-action litigation is initiated by the hundreds of thousands of Canadians with mobility disabilities and the millions of Canadians who face various limitations in their activities of daily living due to building code policy that negatively impacts their health and safety in their homes, as well as denies them their human rights in most housing. Building code policy has ignored Section 15 Equality Rights in housing for persons with disabilities since 1985, which are enshrined in the Canadian Charter of Rights and Freedoms. Building code policy has also been ignoring disability rights found in the United Nations Convention on the Rights of Persons with Disabilities, which Canada ratified in 2010. And the greatest liability to building code policy is that they've often chosen to ignore or refute domestic and global evidence-based research brought forward in many Code Change Requests during code development and updates. Whether we consider access, use or egress failures in housing, building code policy is directly responsible for health and safety impacts to individuals in their homes (which include preventable injuries and premature deaths). As well, ineffective statistical data on disability that primarily relies on self-reporting and invalid & unreliable methods of data collection are compounding the crisis that persons with activity limitations and disabilities face in housing. The above examples of negligence in building code policy would most certainly make it liable to remedy in our court system resulting in no less than tens of billions of dollars in damages if class-action litigation is initiated. Given that Ontario has roughly one-third of our nation's population, such an impact to our provincial economy would be far more significant than implementing the simple and low-cost features of VisitAbility to all new housing rather than only offering it in 15% of units in Group C Major Occupancy buildings [OBC 3.8.2.1 (5) to (8)]. Doing so would ensure human rights and improve the health, safety and sustainability of housing for a growing proportion of Canadians who desperately need adequate housing options that meet their current and future needs. The existing and growing accessible housing crisis can no longer be ignored by our governments, including the government of Ontario."

Inclusion, sustainability and health & safety in new residential development

I recently commented on Twitter that the City of Ottawa affordable housing sector has had environmental, economic and social sustainability figured out for years; the proof is in the projects that have been built in the last few years, like Salus Clementine and The Haven to name two. But I'd love to see this type of innovation transferred over to the private housing sector, especially passive house techniques (net zero) and Universal Design (VisitAbility being the minimum acceptable standard but more features would be advisable).

 In reading the City of Ottawa Official Plan discussion paper for housing, as well as Ontario's More Homes, More Choice Housing Supply Action Plan, I'm not seeing a satisfactory level of prompt and effective leadership when focusing in on Inclusionary Zoning and Universal Design. The Province of Ontario started allowing Inclusionary Zoning in 2018 but I have yet to hear of one municipality leading in it. Canada Mortgage and Housing Corporation published a great report about IZ that clearly showed its positive impact on increasing affordable housing stock in jurisdictions that acted on it, some were decades ago. Unfortunately, we're not there yet. We're also not there yet on Universal Design even though our National Housing Strategy has recognized housing a human right (2017) and is looking to ensure it in Bill C-98, the National Housing Strategy Act. When discussing housing as a human right and adequate housing, I often highlight the fact that both our Ontario Building Code and the National Building Code of Canada continue to exempt houses from barrier-free design requirements (Part 9 of building code deals with houses and small buildings, which is the bulk of new residential development. Architectural barriers continue to be created daily in new housing because of this exemption, a violation of the Canadian Charter of Rights and Freedoms and the United Nations Convention on the Rights of Persons with Disabilities).

Recommendations for inclusion, sustainability and health & safety:

-Change Official Plans and Zoning by-laws to move forward more aggressively with 6 storey wood-frame residential construction anywhere in a community, especially ones serviced by transit routes (to increase density & intensification and to improve sustainability). Wood is more cost-effective than concrete and steel and certainly more sustainable. And fire prevention is far better than it was 50 years ago.
-These six storey multi-units must be mixed-use by ensuring that the main floor has retail and services, rather than constantly having to travel all over our communities to get the things we need/want. They must also be mixed income (thanks to inclusionary zoning, which would require a percentage of units to meet affordability criteria within any new development rather than be in segregated affordable housing projects). They must also be universally designed to ensure that our homes meet the needs of everyone, regardless of age or level of ability. They must also offer a variety of 1, 2, 3 and 4 bedroom units because not everyone needs a bachelor, 1 or 2 bedroom unit.
-They must be resilient as we've seen far too many environmental disasters destroy homes and lives. They must be either net zero or passive house for energy-efficiency. And finally, they must be safe (indoor air quality; fire resistance; great lighting; and other logical features to reduce injuries and deaths)

As the news and social media headlines have shown, Ontario isn't immune to the global affordability crisis and I can assure you that we're not immune to the global accessibility crisis either. Both are already happening here and this is why I suggest the recommendations above (and others thrown in for good measure). We can't keep designing and building housing the way we have been and expect it to sort itself out by market demand. It isn't logical to continue down this dysfunctional path, innovation in housing is desperately needed for private development. Our building codes need to move away from minimum standards and encourage best practices that are readily available globally. It just isn't acceptable to continue with minimum standards in housing and think that being reactive to problems is a sustainable mindset to continue. Cost inevitably comes up as an excuse on a regular basis to quash best practices (that's evidence-based best practices) but history has shown us that being reactive to poor design and policies costs us far more. Ask the insurance industry, claims relating to homes cost billions per year; as consumers, this is reflected in the higher premiums that we pay.

That's my two cents worth for today. All the best.

Housing has turned into this corrupt insanity only serving the healthy and wealthy.

It's difficult to be optimistic about housing when you hear and read everything that's going on in both the rental and ownership of housing. Housing prices and rents have gone into the stratosphere, gobbling up an ever-growing percentage of net income. The sheer amount of information available on Twitter alone, as an example, is both shocking and discouraging. Building code, zoning and land use policies; complex financing/mortgage schemes; money laundering into real estate; political donations by landlords & developers; inequitable taxation in favour of the wealthy...it’s a corrupt mess on a global scale. The United Nations Special Rapporteur on Adequate Housing, Ms Leilani Farha, is a global expert on housing who has been ringing the alarm on this chaos in her reports to the Human Rights Council and in an excellent documentary currently circulating in film festivals (http://pushthefilm.com/). People of all walks of life are struggling to find or keep adequate housing and it's getting worse by the month as prices continue to soar unabated.

It wasn't long ago that the dream of many people was to land a full-time job, have a family and own a home. All of this has changed: full-time permanent positions (benefits and pensions too) disappear regularly at the sake of profits, marriages are failing at alarming levels or not happening at all, those who have children can barely afford to provide for their needs (often basic needs) in far too many cases. And owning a home is becoming a fiction, as is finding rents that aren't going to rob you of what little you have left after the various taxes and user fees (that we've all seen creep upwards and well above salary increases).

But back to housing. I said the following in an email this morning "Housing has turned into this corrupt insanity only serving the healthy and wealthy." Look through some of my Twitter activity and you'll get that message loud and clear. There's already lots of media attention about the global affordability crisis and the efforts of various governments to combat it, unsuccessfully, because we're dealing with TRILLIONS OF DOLLARS in the largest business in the world, housing. Pension funds, real estate investment trusts, big banks and organized crime, the wealth by these key players in housing is insurmountable. As is the political will by some elected officials who justify political donations from some of those sources of wealth.

Look around at prices and what's being built these days: aesthetically pleasing homes that far too often have building code violations or other unacceptable issues, at a time when prices are far out of reach to working-class and middle-class households. Even dual-income households find themselves unable to qualify for a mortgage or struggling to pay rent after all other deductions are accounted for.

My concern has always been with architectural barriers that are perpetuated in building code at a time when the world is aging/ageing and persons with activity limitations (and various disabilities) are on the rise. Again, we're putting out new inventory that applies to a shrinking percentage of buyers. If you aren't wealthy and healthy, then you're on your own with what's left out there. Or homelessness that's reached alarming levels everywhere.

The solution? The exact opposite of what's been happening in the last thirty or forty years. Some countries are far better off with their inventory of affordable and accessible housing, perhaps it's time to learn from their strategies. The elephant in the room are the lawyers, bankers and accountants (our white collar criminals) who have played a key role in creating the climate that we're currently facing and the utter lack of ethics and common decency involved, all based on corporate or selfish greed. Of course I'm a bleeding heart socialist, I've made my living assisting adults with disabilities for more than two decades and have seen first hand their struggles with affordability and accessibility but they're far from the only ones. Documentaries like Push are exposing this nightmare to the masses and fuelling a revolution in housing that's already begun.

We're heading into interesting times, I'm very curious to see what the next 24 months bring to the surface in this corrupt insanity that we call housing.

United Nations State visit to Canada, April 2-12, 2019 by Ms Catalina Devandas Aguilar, UN Special Rapporteur to the Convention on the Rights of Persons with Disabilities.

Excerpts below are taken from the video available at http://www.cpac.ca/en/programs/headline-politics/episodes/65969897

02:09-02:23

"...My main finding is that Canada urgently needs to transform (its) system, that systemic change is needed to ensure that people with disabilities can enjoy their human rights on an equal basis with others."

02:30-02:40

"I have noticed that there are significant shortcomings in the way that the federal, provincial and territorial governments implement the rights of persons with disabilities."

02:40-02:50

"In many cases, persons with disabilities have to initiate very lengthy and onerous legal procedures to get their rights recognized."

03:30-03:52

"One thing that is lacking is a comprehensive human rights-based approach in the responses that the governments are giving to this population and this needs to be changed in line with the Convention on the Rights of Persons with Disabilities that has been ratified by Canada."

03:53-04:35

"I am deeply concerned, moving to an issue that is fundamental, that is the independent living of persons with disabilities within their communities, and I'm deeply concerned that many persons with disabilities are presented with no other choice except the placement in residential institutions like nursing homes and group homes, and it is important that the country break these segregated approaches and move to inclusive policies that provide the necessary support for persons with disabilities to live independently in their communities. This should be recognized as a human right and not merely as a social assistance program."

06:20-06:42

"...I'm also highly concerned about the specific challenges faced by Indigenous people with disabilities because they are over-represented in the population that face poverty, exclusion and discrimination and that overcoming this structural discrimination is essential to building an inclusive and equal society in Canada."

07:10-07:30

"One of the concerns that I have is that we need to look at the situation of persons with disabilities also residing for long term in psychiatric facilities."

10:05-11:26

"As I said, I think that one of the main challenges of Canada is particularly the provision of home support. Home support that allows persons with disabilities to live independently and to perform all their daily activities in the community with autonomy, and these, there are severe and significant discrepancies across the country in how persons with disabilities are receiving that support. That support is not considered to be an entitlement, it's more like a program that is social assistance and it's tapped. You know, you have funding taps, you have long waiting lists to receive that kind of support, and as a result, in many cases when there are high support needs, people with disabilities by default being sent to residential facilities, which is a fact, I think a risk, that Canada is engaging in a process of re-institutionalization of persons with disabilities and this is something that really needs to be addressed urgently to make sure that services are provided in the community, that support is available for persons with disabilities so that you avoid situations in which nursing homes or home groups or other kind of residential facilities are the only and default option for persons with disabilities. And yes, it is against the Convention on the Rights of Persons with Disabilities, particularly Article 19."

17:31-18:53

"Yes, with Indigenous populations indeed, Indigenous persons with disabilities, I think that there are dramatic challenges to be addressed and their access to services in a timely manner, and services that are culturally sensitive, that would avoid the risk of assimilation. Many persons with disabilities living on reserve can only access services by leaving their communities, which presents additional challenges. And I do appreciate that Bill C-81 is probably going to, there's going to be an opportunity to discuss with First Nations governments on how to advance, and if, and how, this Bill applies to Indigenous persons with disabilities. What my recommendation is that in that regard, is that it is important that all authorities involved in that process make sure that this process is done in the most efficient, and as fast as possible, to ensure that the needs of persons with disabilities in the Indigenous community are protected as well."

19:30-21:20  Solutions for support in the community are discussed:

                      -community-based services
                      -independent (individualized) funding
                      -remove caps on hours
                      -increase hours of support in the community for high needs individuals rather than  default to institutionalization.

ONE SOLUTION FOR SUPPORT IN THE COMMUNITY THAT WASN'T DISCUSSED WAS THE NEED FOR UNIVERSAL DESIGN FEATURES IN HOUSING. BARRIERS IN HOUSING OFTEN LEAD TO UNSAFE HOME CIRCUMSTANCES, OR IN MORE EXTREME SITUATIONS, TO PREMATURE INSTITUTIONALIZATION BECAUSE HOME ENVIRONMENTS AREN'T TYPICALLY WELCOMING TO A DECLINE IN ABILITIES NOR TO DISABILITIES. RESPONSIBILITY FOR THESE BARRIERS IN LARGE PART RELATE TO BUILDING CODES THAT PERPETUATE THESE BARRIERS IN HOUSING.

A report on Canada will be submitted to the Human Rights Council in March 2020. This will be the second report highlighting the shortcomings of the implementation of the Convention on the Rights of Persons with Disabilities in Canada, the first one available at:
https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRPD%2fC%2fCAN%2fCO%2f1&Lang=en

The initial report on Canada, as well as this State visit, should be a wake-up call to Canada...we must do far better for Canadians with disabilities. We are obligated to do so in the CRPD as well as in our Canadian Charter of Rights and Freedoms.

Today's Accessibility Town Hall, Queen's Park

MY 3-MINUTE PRESENTATION WILL FOCUS ON ARCHITECTURAL BARRIERS IN HOUSING THAT EXCLUDE PERSONS WITH DISABILITIES

The intended goal of the AODA has been to achieve accessibility for Ontarians with disabilities but one sector where we've failed miserably is housing. I think it's despicable that we're now into our 14th year of the AODA yet no standard has been created for housing; we're intentionally ignoring our human rights' obligations in housing. Worse than that, the "Initial Proposed Accessible Built Environment Standard" dated June 2009 died in 2011 due to intense lobbying against it; Chapter 13 already contained recommendations for housing. This 272-page draft document would have prevented new barriers in housing had it been implemented 10 years ago rather than eliminated. It might have actually decreased the accessible housing crisis that we're now facing.

As it stands, the Ontario Building Code continues to exempt nearly all private housing from barrier-free design requirements in section 3.8.1.1; the only exception is that 15% of units in new apartment buildings are required to be VisitAble, which is the most basic & affordable form of barrier removal in housing. This discriminatory building code policy condones architectural barriers that exclude persons with mobility disabilities from most housing. The unfortunate result is that anyone who needs housing more suited to their changing abilities has no choice but to search for a suitable renovation contractor...or build a custom home...both of which are expensive propositions. 

The myths surrounding barrier removal in housing include the following: it's ugly, it's too expensive, it's too complicated or there's no demand for it. All of these myths are false. It's not ugly, I've personally seen beautiful design in Winnipeg and also in Bolingbrook, Illinois. The cost is far more reasonable in new construction because renovating for accessibility can be up to 20 times more expensive. It's not too complicated because best practices already exist nationwide, home builders simply need to learn from their colleagues who have already done it. And regarding demand, I know there is because we have millions of baby boomers who are already seniors & experiencing a decline in their abilities...and hundreds of thousands of Canadians with a variety of mobility disabilities.

But there is hope. Canada Mortgage and Housing Corporation already has decades of experience with barrier removal in housing, one example being their FlexHousing program going back to the early 1990s. As well, the Canadian Standards Association has a section about housing in their B651 accessibility standards. And there are a number of accessibility professionals eager to guide home builders through the process of barrier removal.

What we need is strong leadership to move forward with human rights in housing, to ensure that architectural barriers are prevented as part of our AODA ambitions. We need housing to be welcoming, safe and sustainable...Ontarians with disabilities deserve far better than our current practice of ableism and exclusion. We must act to eliminate the exemption of housing from barrier-free design requirements in Ontario Building Code section 3.8.1.1.

THANK YOU.