Business Corner
means that they are unlikely to require affected organizations to redesign and rebuild public spaces for the purpose of bringing them into compliance. Ordinary maintenance activities, such as minor repairs or painting aimed at restoring a space or element to its prior condition, should not, generally speaking, trigger or engage the standards. Limited Scope The Design of Public Spaces Standards apply only to developments or redevelopments undertaken by Ontario’s government and legislature (after 2014), by municipalities and other “Designated Public Sector Organizations” (after 2015), or by organizations with more than fifty employees (after January 1, 2017). Only a few of the standards are intended to apply to smaller organizations, beginning January 1, 2018. It is important to note that the standards permit deviations from their technical specifications to the extent that “it is not practicable to comply with the requirements, or some of them, because existing physical or site constraints prohibit modification or addition of elements, spaces or features.” This provision may be engaged, for example, where rocks bordering a recreational trail or beach access route impede achieving the prescribed minimum clear width. Also relevant is the fact that the standards only apply to those facilities and spaces that an obligated organization still “intends to maintain.” This likely means that when an obligated organization decides to abandon or cease operating an old recreational trail, beach access route, picnic area, parking lot, or outdoor play space, it is not required to keep these spaces compliant with the standards. For example, the operator of a forested park should probably not fall afoul of Accessibility for Ontarians With Disabilities Act inspectors because it lets its abandoned walking trails deteriorate and “return to nature” gradually, rather than demolishing them actively. Reconciling Values and Priorities The Design of Public Spaces Standards regime is structured to avoid undermining the environmental and cultural objectives that make the creation of public spaces and public access desirable in the first place. For
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example, many public spaces, from provincial parks to forested urban ravines, exist at least in part to advance objectives such as habitat continuity or the preservation of “unspoiled” wilderness, and these objectives could be undermined by installing ramps, re-grading, or widening and upgrading trails and boardwalks. To avoid such outcomes:
into full compliance with new standards. Such disincentives are likely avoided by way of two carve-outs from the definition of “redeveloped” that exclude “environmental mitigation” or “environmental restoration.” Because of these carve-outs, the Design of Public Spaces Standards should not be engaged by:
• the standards regulation permits such deviations from its prescriptions and performance standards as are necessary to avoid significant risk of direct or indirect adverse effects upon water, fish, wildlife, plants, invertebrates, species at risk, ecological integrity, or natural heritage values, or any risk of direct or indirect damage to the natural heritage of a UNESCO World Heritage Site;
• “activities that are intended to reduce, mitigate, prevent or compensate for adverse effects of human activities or items, including paths, play spaces, trails and parking, upon fish, wildlife, plants, invertebrates, species at risk, ecological integrity or natural heritage values”;
• separately, “wilderness trails, backcountry trails, and portage routes” are exempted altogether from the technical standards prescribed for recreational trails and beach access routes generally. The Design of Public Spaces Standards are also subject to exceptions and exemptions that are designed to protect cultural and historic features. As with environmental values, standards may be deviated from as necessary to prevent them from: • affecting the preservation of places set apart as National Historic Sites of Canada by the Minister of the Environment for Canada under the Canada National Parks Act; • affecting the historic interest or significance of historic places marked or commemorated under the Historic Sites and Monuments Act; • posing any risk of damage to the cultural heritage of a UNESCO World Heritage Site. A related feature of the Design of Public Spaces Standards regulation is that it aims to avoid perverse impacts on active measures to advance environmental and broadly non-anthropocentric objectives. Obligated organizations might be deterred from modifying public spaces to create wildlife habitat, or to reduce the harm its parking facilities create for plants and animals, if this would trigger an obligation to bring a legacy facility
• “activities that are intended to benefit fish, wildlife, plants, invertebrates, species at risk, ecological integrity or natural heritage values.” When compared with the Human Rights Code, which engages with the built form of public space in broad and general terms, the Design of Public Spaces Standards seem to provide much more guidance for landscape architects. However, the standards contain ambiguities of their own, perhaps the most important of which is the question: what constitutes public space? While the standards apply only to “public spaces,” the term is not defined. Regardless of how this and other questions are ultimately answered, the coming into force of the Design of Public Spaces Standards puts landscape form, and the professional judgement of Ontario landscape architects, more squarely in the view of law enforcement and public policy makers. BIO/ Phil Pothen, JD, MLA, is a Toronto-based land-use planning and environmental lawyer who appears before the Ontario Municipal Board, Environmental Review Tribunal, Committee of Adjustment, Superior Court, the Human Rights Tribunal of Ontario, and a range of other adjudicative tribunals. He is a member of the Ground editorial board, and has a master’s degree in landscape architecture from the University of Toronto and a Juris Doctor from the Osgoode Hall Law School. TO view additional content for this article, Visit www.groundmag.ca.
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