Overview

Expanding Knowledge

Research Program

Government Policies and Standards on Building Codes

For this report, the researchers, through their consultations, secondary source review and case law searches, sought material on the extent to which government policies and standards on building codes, air quality and ventilation include features that act as barriers that are detrimental to individuals with environmental sensitivities.

The only case law that the researchers were able to identify that addresses barriers in building codes or rules is Konieczna.⁵⁹ The complainant identified as a barrier a by-law of a condominium complex requiring residents to have wall-to-wall carpeting, because she had severe allergies to the latex contained in carpeting, as well as to dust mites, mould and formaldehyde. The primary issue before the Tribunal was not the hardship that an accommodation might cause, but whether the Tribunal had the jurisdiction to examine the by-law and whether it constituted prima facie discrimination. The Tribunal found for the complainant on both issues and stated:

Although the by-law is neutral on its face, and applies equally to all residents, the Complainant is adversely affected by the by-law because of her physical disability. The by-law affects her health and quality of life in a way it does not for other residents who do not suffer from the Complainant's disability.⁶⁰

While the researchers were unable to identify any other case law addressing requirements in such standards that act as a barrier to persons with sensitivities, the standards fall far short of accommodating individuals with environmental sensitivities. Generally, building standards are intended for the safety of a building, rather than its impact on health, and as such are particularly unaccommodating in relation to environmental sensitivities.

In fact, the Ontario Human Rights Commission has specifically acknowledged the shortcomings of the Ontario Building Code in accommodation for disabilities generally. Building codes are designed to provide a minimum level of safety, but "Building Code without due consideration for their obligations under the Human Rights Code."⁶¹ In its submissions, the Commission recommended that the Building Code include standards to minimize chemical exposure.

Despite the shortcomings of building codes generally, the Act, the ADA and the DDA provide for developing standards on accessibility that move toward universal design. In Australia, the Human Rights Commission was recently involved in the redevelopment of the building codes to provide standards for accessibility. However, because the building codes do not currently address issues related to accommodation for environmental sensitivities, this project has yet to address such disabilities.⁶²

In the United States, the National Institute of Building Sciences and the Access Board are working together to develop voluntary standards on indoor air quality as it relates to design and construction, operations and maintenance, building materials and designated clean air rooms.⁶³ While these guidelines are voluntary at this stage, the hope is that, by including industry representatives in their development, there will be greater voluntary compliance with them.⁶⁴

The California Building Code currently defines the term “designated clean air room” and provides for certain ventilation and building standards to define a room as such.⁶⁵  Again, while buildings are not required to have such spaces, the development of voluntary standards is intended to lead to greater provision of such spaces and to allow individuals with environmental sensitivities to have confidence that they will be healthy in such spaces.

New York State has passed legislation and published guidelines obliging schools throughout the state to purchase less-toxic cleaning and maintenance products.⁶⁶ The purpose of the guidelines is to protect general student and employee health, not just the health of those sensitive to chemicals, but it will certainly act to minimize exposures for people with sensitivities as well.

At present, Canadian building codes and government standards related to accommodation for environmental sensitivities are lagging behind those of the United States and Australia. Several states have developed voluntary or mandatory standards on less-toxic alternatives.

Recommendation 3: When reviewing their building codes, governments across Canada proactively address issues related to accommodation of people with disabilities, especially disabilities that are difficult to address retrospectively, such as environmental sensitivities.

59. Konieczna v. Strata Plan NW2489, [2003] B.C.H.R.T.D. No. 37.
60. Ibid at para. 51.
61. Ontario Human Rights Commission, Submission to the Ministry of Municipal Affairs and Housing on the Accessibility Provisions of the Ontario Building Code, March 1, 2002.
62. Interview with Michael Small and Commissioner Graeme Innis by Cara Wilkie and Margaret E. Sears (August 29, 2006).
63. National Institute of Building Sciences, "Report of the Indoor Environmental Quality Project to the Architectural and Transportation Barriers Compliance Board," July 14, 2005.
64. Interview with James Raggio by Cara Wilkie and Margaret E. Sears (Sept. 6, 2006).
65. California Code of Regulations, Title 24, Parts 2 and 12, 1117B.5.11-1117B.5.11.3.
66. New York State Office of General Services, "Guidelines and Specifications for the Procurement and Use of Environmentally Sensitive Cleaning and Maintenance Products for All Public and Nonpublic Elementary and Secondary Schools in New York State" August 28, 2006.