Canada: Elevating Our Standards: Proposed Bill Responds To Ontario's ‘Elevator Crisis'

Last Updated: April 24 2017
Article by Devry Smith Frank LLP

Powerlessness can take many forms, some less obvious than others.  The ability to independently get from one place to another – whether to buy groceries, to attend medical appointments, to socialize, or even just to check the mailbox – is so basic a part of most of our lives that we tend to take it for granted.  Without this power of mobility, many face the deeply troubling prospect of being trapped and isolated in their apartment or condo.  For the elderly, the disabled, and others unable to scale a flight of stairs, what holds that dismal prospect at bay might be nothing more than a functioning elevator.  As service interruptions increase, so do the risks.

Understandably, most of us aren't used to thinking about the elevator in these dramatic terms.  But one Toronto MPP, Liberal Han Dong, recently proposed measures he hopes will prevent such situations from materializing.  His private member's bill, the Reliable Elevators Act, 2017 would amend both the Building Code Act, 1992, and the Consumer Protection Act, 2002, such that new buildings will be required to have sufficient elevator traffic capacity, and non-functioning elevators will need to be repaired within set timelines.  The bill appears to be gaining bipartisan support.  It is set for debate on April 13.

What's going wrong? 

Elevator repairs have been an issue in Ontario for some time.  Last year, an investigation by The Canadian Press' Colin Perkel dubbed the situation a "crisis".  It cited, for example, the number of calls to Ontario firefighters to help people trapped in elevators, a figure which had doubled between 2001 and 2015 to a total of 4,461 annually.  The plurality of elevator-rescue calls were in Toronto, topping the list with 2,862 such incidents.  Reports of injuries are rare, and the vast majority are very minor, but they too have been increasing by about 6% annually.

Yet more unsettling were reports of the elderly being, in some cases, confined to their apartments for months at a time.  In one such case, a long-term care facility in Clarington, Ontario went without a functioning elevator for over three months in 2014.  Many of those resident on the second floor were effectively confined there throughout.

Vulnerable communities seem to bear the worst of it.  Alongside the elderly and the disabled, the CBC reported that the low-income residents of Toronto public housing seem to suffer disproportionately from elevator interruptions.  The Toronto Community Housing Corporation is responsible for 591 elevators in 270 buildings, many more than 50 years old, and many serving residents in high-rise buildings.

Toronto Community Housing's $250 million building repair budget has allotted $2.1 million to elevator replacement or refurbishment in 2017.  While not an insignificant sum, it falls far short of the immense capital repair backlog, which had already reached $2.6 billion by 2015 (see here).

What's behind it?

According to the CBC (see link above), critics point to older, unreliable equipment and the lack of competition in the elevator market as the source of the problem.  Thousands of Ontario elevators are 25, 50 or more years old.  This is not in and of itself a crisis, but, of course, without proper maintenance, older elevators become increasingly prone to dysfunction.  This, it seems, is precisely the situation we are in.

Reportedly, a group of only four major multinationals dominate the industry, and their competition to increase market share has triggered a "race to the bottom".  As these companies compete for the lowest price point, technicians are being overstretched, having to tend to more elevators for less compensation.  The result is a vicious cycle: technicians have less time for preventative maintenance, leading to more elevator issues, responding to which then further decreases time for preventative maintenance, and so on.

What about market entry?  One might ask why a lack of technicians hasn't resulted in competitors filling the gaps in the market.  While many economic variables are certainly in play, it does seem that the market is selecting for the lower-cost service provider, and smaller players simply can't compete on price.  Landlords and property managers can't necessarily be faulted for choosing the more economical option, but the aggregate result is an unwelcoming, uncompetitive industry.  As the Star's Editorial Board succinctly put it, "the oligopoly of multinational companies that dominates the industry has little competitive or regulatory incentive to move quickly to fix [failing elevators]".

At some point, the market might well shift towards demanding more prompt service and regular maintenance.  Price competition has its limits.  Until then, the proposed bill may be the most viable way forward.

What is being proposed?

The proposed bill has three components.  First, acquiring building permits for the construction of seven-story buildings (or higher) would be contingent on having "reasonable elevator traffic capacity."  This will determined by mandatory "elevator traffic analysis conducted in accordance with industry standards" (see the proposed bill here). The goal, presumably, is to prevent builders from skimping on the number or size of elevators, which should limit over-use and reduce service interruptions.

Second, elevator maintenance contracts will be made subject to the Consumer Protection Act, 2002.  The definition of "consumer" will be changed to include "a person who is the customer of an agreement with a contractor for the maintenance of an elevator, including a person who is acting for business purposes" like a landlord.  Protections will thus apply to these "consumers", such that a contractor responsible for elevator maintenance could face penalties like black-listing (being placed on the "Consumer Beware List") or even prosecution for failing to meet repair timelines.

These timelines constitute the third component: elevator maintenance contractors will be required to repair out-of-service elevators within 14 days of learning of the problem, or seven days for elevators in long-term care homes or retirement homes.

What can we expect?

The bill is still in its infancy, and will be subject to further legislative debate.  Also, private members' bills rarely pass.  In that sense, it might be an uphill battle.  Proponents, however, will be encouraged by the response it has received on both sides of the isle.  Whether this will solve the problem is difficult to say: Will the supply of technicians increase?  Will repair timelines be adhered to?  Who will bear the costs?  What will enforcement look like?

In any case, we may well see it in action.  Time will tell.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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