Inaccessibility and the law of the built environment: understanding people with disabilities as members of the public

This thesis considers the ways that the law of the built environment in Canada perpetuates the segregation of people with disabilities away from public space. How and what we build is a highly regulated activity. If these regulations, like provincial building code or municipal bylaws, presume that the public is able-bodied then we will continue to build in a way that excludes or disadvantages disabled people. Using the analytical tools of critical disability theory and Iris Marion Young’s concept of the “heterogeneous public”, I argue that rebuilding our communities to reflect the full range of human embodiments will require strategies that target able-bodied privilege in the substantive and procedural law of the built environment. In order to explain how this privilege operates, I begin with a historical study of the role of the federal government in drafting building standards in the 1940s which led to Canada’s first National Building Code (NBC). The standards in the NBC, which originally only provided for the safe use of buildings by able-bodied people, have been adopted as a whole or in part by every province. Even after the federal government published the “Building Standards for the Handicapped” in 1965, it took decades for the provinces to start enforcing “barrier-free” standards and these continue to be separate from and subordinate to the main text of provincial building code. Next, I use a contemporary case study about a disability advocacy group’s fight for accessible summer patios in Montreal, Quebec, to illustrate the strengths and limitations of human rights law remedies for inaccessibility in the built environment. Though this case led to changes in the design of summer patios, it had an absurd result of allowing wheelchair users to eat and drink on an outdoor patio without any guarantee that they would have interior access, including access to a washroom. I propose that the most effective way for disabled people to use human rights complaints is to target the underlying laws that presume an able-bodied public, like restaurant licensing regulations that require public hand-washing facilities but do not require these facilities to be accessible. Finally, I propose some proactive approaches to building inclusive communities by looking at the procedural aspects of planning law that provide for members of the public to provide input or contest permitting decisions. If people with disabilities participate in planning law processes, like public consultations or appeals at the permitting stage, they can potentially prevent the mistakes that will likely be made if only able-bodied people are in the room. It is not reasonable, or cost effective for anyone, if persons with disabilities have to wait and file a human rights complaint post-construction when they could intervene directly in how the laws that regulate the built environment are applied and interpreted

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