Rent Control Bulletin (November 2015)

The AODA’s Design of Public Spaces: Separating the Landlord and Tenant Responsibilities

The Accessibility for Ontarians with Disabilities Act, 2005 (the “AODA”) raises new and important considerations for landlords and commercial tenants when building or redeveloping public spaces. In commercial leasing situations, clients often wonder who will be responsible to make sure that the public spaces meet the AODA’s accessibility requirements. The answer is that it depends on who is doing the construction and what the lease says.

First, it is important to remember that the AODA only applies to new construction and “redeveloped” public spaces. This means that the requirements will apply to planned significant alterations, but not maintenance of existing facilities. A property owner or commercial tenant will not be forced to immediately upgrade public spaces to comply with these regulations.

Public spaces covered by the AODA include: exterior paths of travel; parking facilities; outdoor play spaces; and service-related facilities (i.e. service counters and waiting areas). These obligations are in addition to new obligations found in the Building Code, which may require certain enhanced accessibility features. These requirements are also being phased in: large organizations (50+ employees), must comply by January 1, 2017 and small organizations (less than 50 employees) have until January 1, 2018 before they must comply with these requirements. This means that there may be a year where the requirements apply to a landlord, but not to a commercial tenant or vice versa.

Unfortunately, the AODA does not draw a line in the sand between obligations that apply exclusively to landlords and those that apply to tenants. However, the Ministry of Economic Development, Employment & Infrastructure has provided some guidance. According to their Policy Guidelines, if the leaseholder/tenant constructs or develops a public space, the tenant must comply with the standards, not necessarily the landlord. Of course, this obligation may be altered by other factors and may be subject to the terms of the lease agreement, but generally the obligated organization will be the one who constructs or redevelops the public space.

Regardless of the legal requirements, it is essential for both landlords and commercial tenants to remember that both parties have an important interest in making public spaces accessible to all Ontarians. By including accessible features as an essential component in the design of new public spaces or major renovations, you will not only make your properties compliant with these new accessibility requirements, but these spaces will appeal to a wider market and be more desirable.

Laura McKeen is a partner with Cohen Highley LLP in London. Cohen Highley has offices in London, Kitchener, Chatham and Sarnia. Laura provides risk management and regulatory compliance advice to Condominium Corporations and Property Management Companies. Laura can be reached at mckeen@cohenhighley.com or 519-672-9330 x 427.