Open letter – accessible housing and the National Building Code

To:

The Honourable François-Philippe Champagne, P.C. M.P.
Minister of Innovation, Science and Industry

The Honourable Sean Fraser, P.C, M.P.
Minister of Housing, Infrastructure and Communities

The Honourable Kamal Khera, P.C. MP
Minister of Diversity, Inclusion and Persons with Disabilities

The Honourable Arif Virani, P.C, K.C., M.P.
Minister of Justice and Attorney General of Canada

Dear Ministers:

I am writing in response to the Canadian Board for Harmonized Construction Codes’ recent consultation on proposed changes to the 2020 Edition of the National Building Code (NBC). My role as Federal Housing Advocate is to drive change on key systemic housing issues and to hold government decision-makers accountable for their human rights obligations related to housing. I continue to be alarmed by the severe shortage of accessible and adaptable housing in Canada, and I do not believe that the proposed changes to the accessibility requirements in the NBC are sufficient to meet this challenge.

Accessible housing is a fundamental element of the right to adequate housing, a right that is clearly recognized and affirmed under the National Housing Strategy Act (NHSA) and international law. This right obliges Canada to ensure that people have access to affordable, safe, accessible, and secure homes, free from discrimination or harassment. Under the NHSA, the human right to adequate housing must be incorporated into in all housing laws, policies and programs in Canada.

At present, Canada’s housing stock falls markedly short of this standard – a fact that has pervasive detrimental effects on many of the 8 million people in Canada with disabilities (PWD) and our rapidly aging population. For instance, due to the shortage of accessible housing, many seniors and PWDs are forced to live in inaccessible, inappropriate and/or unsafe dwellings. This significantly increases their risk of injury, in part because of a heightened risk of falls but also mental health issues. Many people who could otherwise live independently are forced to live in long-term care homes and health care facilities that are not only inappropriate but also extremely costly – causing a burden to the already taxed healthcare system. These are just two examples of the oppressive physical, social, and financial hardships people experience due to the shortage of accessible housing.

Canada’s building codes are one of the most significant drivers of this problem. This includes the NBC, which serves as a model code that provincial and territorial governments adopt in full or in part. The current accessibility requirements for new housing in the NBC are extremely limited. For example, although limited incremental changes have been made to promote greater accessibility in larger multi-unit residential buildings, the current version of the NBC still exempts a wide swath of small-scale housing (e.g. detached and semi-detached houses, duplexes and triplexes) from complying with any accessibility requirements (see: s. 3.8.1.1 of the NBC).

The lack of comprehensive accessibility requirements in Canada’s building codes is not consistent with Canada’s international and domestic human rights obligations, as embodied in the NHSA, the Charter of Rights and Freedoms, and the UN Convention on the Rights of Persons with Disabilities. It is also contrary to the spirit of the Canadian Human Rights Act and the Accessible Canada Act, which commits the Federal Government to creating a Canada without barriers by 2040.

The significance of the Charter deserves special emphasis as it relates to building codes. Section 7 of the Charter protects individuals from unjustified deprivations of their life, liberty, and security of person, and section 15 protects individuals from discriminatory state actions. The fact that the state systematically permits the construction of inaccessible housing, which can be both physically dangerous to PWD and detrimental to their well-being and autonomy, clearly violates these rights. Permitting the construction of housing that PWD and seniors cannot use, except at great personal cost, is both discriminatory and a deprivation of their life, liberty, and security of person.

In their policy paper, Accessibility in Buildings, the former Canadian Commission on Building and Fire Codes acknowledged the importance of the Charter and Canada’s human rights commitments when developing the NBC.^{Footnote 1} However, as of yet, this professed commitment to human rights has not yielded sufficient substantive changes to accessibility requirements for housing.

The recent consultation on updates to the 2020 edition of the NBC proposed limited changes to address this issue, but they fall far short of the far-reaching changes that are needed. Only two substantive changes to existing accessibility requirements for dwellings were proposed (proposed change 1883 and proposed change 1957). They deal with adaptable dwelling entrances and reachable controls in dwelling units. The NBC continues to fall farther and farther behind the most up-to-date accessibility standards for residential housing (e.g. the CSA/ASC B652: 23 Accessible Dwellings; B651:23 Accessible Design for the Built Environment; and the Accessible Ready Housing Guide).

In the 2024 Housing Plan, the Federal Government indicated it will open special consultations on the NBC this summer to address regulatory barriers and streamline the inspection process. These special consultations should also be used as an opportunity to prioritize and accelerate the reform of the NBC to address accessibility and adaptability, instead of waiting until 2030.

I am therefore calling on the Government of Canada to show leadership on these issues by taking the following actions:

1. Improve the consultation process for changes to the NBC. The current process does not give the general public, including seniors and PWD, a meaningful opportunity to engage in the development of the NBC. To make these consultations more accessible and inclusive, I urge you to implement the recommendations in the ARCH Disability Law Centre’s report on Meaningful Participation of People with Disabilities in Regulation Making. I encourage you to consider having Accessibility Standards Canada (ASC) lead the development of and consultations on the accessibility and adaptability sections of the NBC. ASC has an approach to standard development that includes the voices and expertise of PWD. They are funded by the Government of Canada and are accredited to develop accessibility standards for any jurisdiction in Canada.
2. Develop more comprehensive accessibility standards for small scale housing. While I am pleased there is a proposal under consideration for the removal of the exemption in the NBC for this type of housing, this is meaningless until you expand the accessibility requirements for these dwellings. These new requirements should draw on the most up-to-date accessibility standards for residential housing, such as those cited above. Building codes that apply to housing on a broad scale would allow PWD to freely visit friends and family within and outside their community safely and with dignity.
3. Improve current accessibility standards for multi-residential buildings. The current NBC accessibility requirements for large multi-residential buildings have glaring limitations. For instance, they only require a barrier-free path of travel in suites of residential occupancy if the suites have been designated as being “for use by persons with physical disabilities” (see: 3.8.2.3(2) of the NBC). These requirements should also be revised to conform to the most recent accessibility standards for housing.
4. Explicitly incorporate Canada’s international and domestic human rights obligations into the mandates of Code developers. This includes the Canadian Board for Harmonized Construction Codes and the Canadian Table for Harmonized Construction Codes Policy. While the former Canadian Commission on Building and Fire Codes has acknowledged these obligations, they do not appear to play a significant role in the decision-making processes surrounding the development of the NBC. The right to accessible housing should be integrated into all aspects of Canada’s housing policy, including building codes.
5. Undertake and publish further research on the risks that current building codes present for people with disabilities and seniors. Existing research on the health, safety, and socio-economic implications of current building codes for seniors and PWD is very limited. As a result, many proposals to improve accessibility in the NBC are being assessed without a full understanding of the health, safety and financial costs that inaccessibility imposes on these groups. More robust research would better inform the impact analysis conducted on proposed changes to the NBC and would empirically support the adoption of greater accessibility requirements in building codes across Canada.

I will close by saying that Canada is in the midst of an unprecedented effort to facilitate the construction of new housing. It is therefore more important than ever to ensure that housing is built to be accessible and inclusive. Swift action is needed for Canada to meet its obligations under the NHSA and achieve its goal of becoming a barrier-free society.

Yours sincerely,

Marie-Josée Houle
Federal Housing Advocate

c.c.: Stephanie Cadieux
Chief Accessibility Officer