People with disabilities encounter many barriers to accessing public spaces. It can be tempting to identify a person’s disability as the reason for the barriers they encounter. In fact, however, it is often the choices, policies, and practices of others that create the barriers disabled people face.[1] A person who uses a wheelchair is disabled by the flight of stairs they encounter to access a store. A person who is Deaf is disabled by the lack of American Sign Language interpretation at an event. A lack of care and attention from others to disabled people’s needs creates barriers to participation and inclusion.
The Supreme Court of Canada has recognized that for many people with mobility-related disabilities, the physical environment is what excludes them from full and equitable participation in public life. As the Court said over 25 years ago:
Exclusion from the mainstream of society results from the construction of a society based solely on “mainstream” attributes to which disabled persons will never be able to gain access. … [I]t is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them.
This principle was on display in a recent BC Human Rights Tribunal case. The complainant, Maria Kovacs, is blind and uses a guide dog and, at times, a cane to get around her Maple Ridge community. She is very independent and likes to walk and take transit to visit friends, attend church, and do her shopping. In 2016, the City of Maple Ridge began reconstructing a major intersection near Ms. Kovacs’ home. Among other things, the City converted parts of the intersection into multi-use plazas for cyclists and pedestrians to share. The City also created a shared pathway for cyclists and pedestrians that extended from the intersection to a nearby bus stop.
Ms. Kovacs had close calls with bicycles – which she could not see or hear – on the shared pathway. She also found there was a lack of tactile cues allowing her to cross the intersection safely. The roads did not intersect at 90-degree angles, and the intersection lacked cues that would have allowed Ms. Kovacs to align herself to the angle of the crosswalk. As a result, Ms. Kovacs had found herself dangerously outside the bounds of the crosswalk when crossing through the intersection. When her concerns went unaddressed by City officials, she filed a human rights complaint against the City alleging that its design of the area discriminated against her on the basis of her disability, violating section 8 of the BC Human Rights Code.[2]
Section 8 of the BC Human Rights Code prohibits discrimination regarding any “accommodation, service or facility customarily available to the public.” In other cases, the Tribunal has confirmed that municipalities provide many important services to the public that are covered by s. 8 of the Code. In Riddle v. Town of Gibsons, for example, the Tribunal found that the Town’s approval and permitting of developments was a service protected under the Code. The Tribunal confirmed that whenever a municipality undertakes a public activity, it must do so in a way that is inclusive of people with disabilities and furthers the Code’s purposes of promoting inclusion and eliminating systemic inequities.
The Tribunal agreed with Ms. Kovacs that the City had breached the Human Rights Code. She was negatively impacted by the design of the intersection, which she was unable to cross safely, and by the design of the shared pathway and bus stop. Moreover, the City had failed to accommodate Ms. Kovacs’ disability-related needs. While Ms. Kovacs was not entitled to her “ideal” or “perfect” solution, the Tribunal affirmed that human rights law requires the City to reasonably accommodate her by removing barriers that prevented her from navigating safely and independently, using her usual mobility tools. It must take all reasonable and practical steps to address and remove those barriers, short of undue hardship. The City did not meet that requirement.
The Tribunal ordered the City to address these shortcomings within six months. It also awarded Ms. Kovacs $35,000 in compensation for the injury to her dignity, feelings, and self-respect caused by the discrimination.
This was not the first time the Human Rights Tribunal considered the discriminatory impact of a city’s planning and design on people with disabilities. In a 2020 decision, the Tribunal considered a complaint against the City of Victoria brought on behalf of blind transit users.[3] The complaint alleged that the City discriminated against this class of people when it turned some of its bus stops into “floating stops”. To access a floating stop, people must cross a bike lane that runs between the sidewalk and the stop. While there were crosswalks marked through the bike lanes, the evidence presented to the Tribunal showed that bikes rarely slowed down or stopped when someone was waiting to cross and, even if they did, a blind person could not know whether or when it was safe to cross.
The Tribunal found that these floating stops were unsafe for people who are blind. It found that at one location, the City had reasonably accommodated the complainants by installing a flashing yellow light with an audible signal, activated by a pedestrian wishing to cross the bike lane to the floating stop. But for other locations where no flashing and audible signal was installed, the complaint was justified.
People with disabilities bear an unfair burden of having to navigate and learn to move through environments that were not built with their needs in mind. Inclusive and universal design principles help ensure that the needs of people with disabilities are considered from the outset. Effective inclusive design reduces the need for disabled people to ask for individual accommodations, because their needs have already been considered and accounted for.
The importance of this approach to inclusion has been recognized by the Supreme Court of Canada. In British Columbia (Public Service Employee Relations Commission) v. BCGSEU [Meiorin], the Supreme Court of Canada said that to accept exclusionary standards as the norm, to which people with disabilities must adapt, perpetuates a society that is “designed well for some and not for others”. It adopted the following passage:
The difficulty with [the accommodation] paradigm is that it does not challenge the imbalances of power, or the discourses of dominance, such as racism, ablebodyism and sexism, which result in a society being designed well for some and not for others. It allows those who consider themselves “normal” to continue to construct institutions and relations in their image, as long as others, when they challenge this construction are “accommodated”.
…Accommodation does not go to the heart of the equality question, to the goal of transformation, to an examination of the way institutions and relations must be changed in order to make them available, accessible, meaningful and rewarding for the many diverse groups of which our society is composed. Accommodation seems to mean that we do not change procedures or services, we simply “accommodate” those who do not quite fit. We make some concessions to those who are “different”, rather than abandoning the idea of “normal” and working for genuine inclusiveness.
In this way, accommodation seems to allow formal equality to be the dominant paradigm, as long as some adjustments can be made, sometimes, to deal with unequal effects. Accommodation, conceived of in this way does not challenge deep-seated beliefs about the intrinsic superiority of such characteristics as mobility and sightedness. In short, accommodation is assimilationist. Its goal is to try to make “different” people fit into existing systems.
Day, Shelagh, and Gwen Brodsky. “The Duty to Accommodate: Who Will Benefit?” (1996), 75 Can. Bar Rev. 433, adopted Meiorin at para. 41.
We have written about the need for genuine inclusion, as opposed to mere accommodation and assimilation of disabled people into existing and inaccessible systems, in a previous blog post. Organizations, including governments, municipalities, and service providers, should learn about and use the principles of inclusive design when creating or updating their built environments. Inclusive spaces designed to meet the needs of all users will create a richer and more rewarding public realm for everyone.
[1] For a discussion of the medical model of disability vs. the social model of disability, see Ontario Human Rights Commission, Policy on Ableism and Discrimination Based on Disability: What is Disability?
[2] Ms. Kovacs also made allegations about other areas of the City, which were not successful.
[3] A related complaint against BC Transit was dismissed.