Agency Rulings

Decision No. 183-AT-R-2004

April 6, 2004

APPLICATION by John Benjamin pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, regarding the level of assistance that VIA Rail Canada Inc. provided to him on a round trip between Ottawa, Ontario and Québec, Quebec via Montréal, Quebec on October 6 and return on October 10, 2003.

File No. U3570/03-44

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APPLICATION

[1] On December 8, 2003, John Benjamin filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

[2] On January 12, 2004, VIA Rail Canada Inc. (hereinafter VIA) filed an answer that consisted of a copy of its policies and procedures on the assistance provided to passengers with disabilities and reservations by persons with disabilities.

[3] On January 27, 2004, by Decision No. LET-AT-R-27-2004, the Agency requested that VIA file its complete answer to the application within seven days. On January 30, 2004, VIA filed its answer.

[4] On February 26, 2004, by Decision No. LET-AT-R-63-2004, the Agency required VIA to file additional information. On March 3, 2004, VIA filed the additional information, including the Passenger Name Record (hereinafter the PNR).

[5] On March 4, 2004, Mr. Benjamin filed his reply and on March 18, 2004, he filed a copy of his train ticket.

ISSUE

[6] The issue to be addressed is whether the level of assistance that VIA provided to Mr. Benjamin on his round trip between Ottawa and Québec via Montréal constituted an undue obstacle to his mobility and, if so, what corrective measures should be taken.

FACTS

[7] Mr. Benjamin is legally blind and uses a white cane.

[8] Mr. Benjamin made his reservations on October 2, 2003 and, at that time, he informed VIA's ticket agent of his disability and of the assistance that he would require. Mr. Benjamin's ticket contains the following special service codes: BLND, MSCQ and PBTS.

[9] On October 6, 2003, Mr. Benjamin travelled with VIA from Ottawa to Québec via Montréal and returned to Ottawa on October 10, 2003. In Ottawa, the accommodation provided by VIA met Mr. Benjamin's needs. Thereafter, despite numerous requests for assistance at each station, no assistance was provided to Mr. Benjamin. He did not receive pre-boarding assistance in Montréal and, upon detraining in Québec, he did not receive help with locating the baggage area or collecting his luggage. On the return trip, on October 10, 2003 in Québec, no pre-boarding assistance was provided and, upon arrival in Montréal, no assistance was provided to Mr. Benjamin with respect to: detraining, locating the baggage area, collecting his luggage, entraining and finding his seat. In addition, upon arrival in Ottawa, no detraining assistance was provided.

[10] VIA's computer system generates a PNR that contains information about passengers, including those who have specific needs. In this case, Mr. Benjamin's need for assistance was reflected in his PNR, which included three special service requests (hereinafter SSR), with the following codes and remarks:

SSR BLND - Remarks: Blind person travelling alone no escort or dog
SSR MSCQ - Remarks: Blind person needs help boarding OTTW transfer MTRL and to detrain QBEC / Vice Versa
SSR PBTS - Remarks: Pre-boarding blind person

[11] VIA's policy regarding persons with disabilities states in part that:

Our policy is simple and straightforward: customers with special needs will be treated with the same dignity, consistency and understanding as those who do not require special attention.

This policy applies to all types of persons with disabilities, be it physical or mental, permanent or temporary, including children and those travelling on a rail pass.

A special service request (SSR) field in the PNR will ensure file is queued to the appropriate agent, who will make necessary arrangements and confirm services if available. SSRs must be made at least 24 hours in advance, 48 hours in cases of special meals, electric adaptors, stretchers and special stops.

VIA's policy for persons with special needs is that they should not be disadvantaged or advantaged compared to regular passengers.

[12] VIA's pre-boarding policy states in part that:

Pre-boarding is an integral part of the service provided to passengers travelling in First Class, sleeping car accommodations or for groups. These passengers should be able to board as soon as the train is ready to receive them, later followed by groups, then passengers who requested pre-boarding and by all other passengers.

Families with small children, passengers with special needs, children travelling alone, passengers with medical problems, pregnant women, the elderly with difficulty walking (*) and all passengers who believe they require additional assistance in order to board are eligible for pre-boarding service. (*) Note: Being 60 of age as per our fare policy does not automatically entitle to this service. Offer pre-boarding to people who seem to need it or request it.

Although not mandatory to benefit from pre-boarding, a special service request (SSR) should be entered in the PNR at time of ticket reservation or purchase to help the stations assess the demand and provide better service.

When making a special service request, the appropriate code must be used, i.e. PBTS or PBGS for pre-boarding. WCHE, WCHM or WCHR for wheelchairs and CHTA for children travelling alone.

POSITIONS OF THE PARTIES

[13] Mr. Benjamin submits that he made his reservations on October 2, 2003 and, at that time, he informed VIA's ticket agent of his disability and of the assistance that he would require. Mr. Benjamin states that he was told by VIA that, as he was travelling alone, his disability would be noted on his ticket and the necessary accommodation, including pre-boarding services, would be provided.

[14] Mr. Benjamin states that on October 6, 2003 at VIA's train station in Ottawa, "accommodations provided were perfect". Mr. Benjamin explains that: (i) he was informed that he was identified on the passenger manifest as a person with a disability; (ii) he was escorted to the train; (iii) he was asked if any other help could be provided; (iv) he was helped to his seat upon entraining; and (v) the Montréal station "was alerted". Mr. Benjamin states that he also received help with his luggage.

[15] Mr. Benjamin indicates that upon arrival in Montréal and after collecting his luggage, he located a VIA employee and asked where he should wait for pre-boarding. Mr. Benjamin submits that he showed the employee his ticket and mentioned that he is legally blind. Mr. Benjamin asserts that the employee started pointing although Mr. Benjamin could not determine where the employee was pointing. Mr. Benjamin indicates that after a couple of frustrating exchanges with the employee, he eventually located the pre-boarding area on his own by following everyone else to the train during the general boarding.

[16] Mr. Benjamin further states that he asked several times for assistance with finding his seat. Mr. Benjamin adds that a conductor eventually assisted him into a seat, but that he was later told by another passenger that he was in her seat. Mr. Benjamin informed the passenger that the conductor had brought him to the seat.

[17] Mr. Benjamin indicates that upon detraining in Québec, he asked a VIA employee for assistance with his luggage. He states that the VIA employee started pointing when responding to his request, and continued pointing even after being told of his disability and being shown the ticket. Mr. Benjamin adds that he then tried to find his luggage himself and the VIA conductor who had assisted him to his seat on the train noticed that he was having difficulty retrieving his luggage and helped him find his last bag.

[18] Mr. Benjamin states that on October 10, 2003 at VIA's train station in Québec, he approached the main counter carrying his Canadian National Institute for the Blind identification card as well as a white cane and requested assistance. Mr. Benjamin adds that he was taken to a pre-boarding area where he was left alone. Mr. Benjamin indicates that even after repeating his request for assistance, no pre-boarding service was provided. Mr. Benjamin further indicates that he repeated his request for assistance after the general boarding of passengers began, and finally, after everyone was on board, he was shown to his seat. Mr. Benjamin notes that his white cane remained visible at all times.

[19] Mr. Benjamin indicates that upon arrival in Montréal, he did not receive any detraining assistance; he was simply told by a VIA agent that as he had some vision, he could follow the other passengers to the luggage area. According to Mr. Benjamin, he finally found the area and his luggage after making a lot of requests but he notes that there was much finger pointing from VIA's employees in response. Mr. Benjamin states that he experienced a high level of stress from this.

[20] Mr. Benjamin indicates that at the Montréal station, while holding his folded cane, he asked a VIA employee where he should go to board the train to Ottawa, and the employee started pointing. Mr. Benjamin states that the employee continued to point even after Mr. Benjamin showed his ticket and mentioned that he is legally blind. Mr. Benjamin advises that the employee provided no assistance to him, even after he identified himself as a person with a disability. Mr. Benjamin states that someone finally showed him to the regular boarding line.

[21] Mr. Benjamin submits that at the regular boarding line, he showed his ticket to another VIA employee who was checking the tickets of all passengers in line. He adds that the employee looked at his ticket and that he did not provide him with pre-boarding service but instead proceeded to take the family standing in line behind Mr. Benjamin for pre-boarding, before Mr. Benjamin had the opportunity to comment.

[22] Mr. Benjamin states that because passengers are required to descend a flight of stairs to take the train to Ottawa, he asked for help, showed his ticket and white cane and again a VIA employee started pointing in response. Mr. Benjamin submits that, in the end, a passenger who used to work with him assisted him down the stairs with his three pieces of luggage. Mr. Benjamin indicates that thereafter, however, no matter what he said, no help was provided by VIA's personnel with his luggage or finding his seat.

[23] Mr. Benjamin submits that he did not receive any assistance upon detraining in Ottawa. He states that as a result of the incident described above, all he asked for was an apology from VIA.

[24] VIA notes that if a customer makes a SSR and informs VIA of a "disability of the kind experienced by Mr. Benjamin", VIA's employees have strict instructions on how to deal with the customer. Specifically, VIA advises that the service manager is to communicate to the passenger that a designated person from the station will escort the customer from the platform to the station or from the station to the platform; in the event of a connection train being necessary, the customer will be asked to wait near an appropriate place for pre-boarding; when the train is ready for boarding, the customer will be escorted by a station attendant to the respective car or escorted to the on-train personnel; and upon detraining, the passenger will be treated in the same manner. VIA asserts that these procedures are specific and known to train and station personnel.

[25] VIA states that it is extremely sorry about any difficulties Mr. Benjamin may have encountered. VIA submits that "VIA hopes that if this situation should ever arise in the future, that Mr. Benjamin will make his disability known to the person to whom he is speaking so that there will be no confusion as to the assistance that he needs". VIA further submits that it may be that its employees were "confused" as to what Mr. Benjamin's needs were.

[26] VIA states that the codes speak for themselves, indicating in this case that the passenger is blind. VIA explains that a miscellaneous request which is contained in the MSCQ code can deal with a wide-ranging series of matters which may be unique to any particular individual, including assistance with seating. VIA advises that the codes were used in this case because Mr. Benjamin needed pre-boarding assistance during his trip. VIA notes that the SSR indicates that Mr. Benjamin needed pre-boarding assistance, help with boarding in Ottawa, deboarding in Montréal and entraining in Montréal and detraining at Québec and vice-versa on the return trip.

[27] VIA also explains that once a SSR is completed, it automatically creates a number of manifests for each train used for a person's trip. VIA further explains that the manifest is sent to the service manager who rides the train; a pre-boarding briefing is held with all of the train personnel; the service manager explains the SSRs on the train; during the trip, the service manager may carry out the special service himself or may ask any of the other employees to do it; the in-charge person at the station also receives a manifest for the day; and the in-charge person will hold a briefing for all of the persons at the station who might be involved with SSRs. VIA further clarifies that the manifest for the train from Montréal to Québec would also have an indication of Mr. Benjamin's particular needs. Finally, VIA states that the in-charge persons in Montréal and Québec would also have a manifest that indicates that Mr. Benjamin would be travelling and would need assistance while on the ground.

ANALYSIS AND FINDINGS

[28] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.

[29] An application must be filed by a person with a disability or on behalf of a person with a disability. Mr. Benjamin is legally blind and, as such, is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

[30] To determine whether there is an undue obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether the applicant's mobility was restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle was undue. In order to answer these questions, the Agency must take into consideration the particular facts of the case before it.

Whether the applicant's mobility was restricted or limited by an obstacle

[31] The word "obstacle" is not defined in the CTA. This implies that Parliament did not want to restrict the Agency's jurisdiction in view of its mandate to eliminate undue obstacles in the federal transportation network. Furthermore, the word "obstacle" lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement.

[32] In determining whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency looks to the travel experience of that person as expressed in the application. There is a broad range of circumstances where the Agency has found obstacles in the past. For example, there are cases of obstacles where the person was prevented from travelling, where the person was injured in the course of his or her travels (such as where the lack of appropriate accommodation during travel affects the physical condition of the passenger), or where the person was deprived of his or her mobility aid after the trip as a result of damage caused to the aid while it was being transported. Also, the Agency has found obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience were such as to detract from the person's sense of confidence, dignity, safety, or security, recognizing that these feelings may be such as to disincline a person from future travel.

The case at hand

[33] The Agency notes that boarding and/or detraining assistance as well as assistance within the station were requested in advance of travel. In this regard, the relevant information required to enable VIA's personnel to know what Mr. Benjamin's needs were (i.e., that he was legally blind, travelling alone, and requested pre-boarding assistance) was received by VIA in advance of travel and reflected in the PNR. The Agency also notes, however, that despite these arrangements, during Mr. Benjamin's travels on October 6, 2003, with the exception of Ottawa, and again on October 10, 2003, VIA's employees failed to provide assistance to Mr. Benjamin, even when this was requested.

[34] The Agency is of the opinion that when a passenger with a visual impairment requests assistance with boarding or detraining, finding his/her seat, or making his/her way within the train station but is left unattended and in a state of uncertainty, this would likely result in significant stress to the passenger and may disincline him/her from future travel.

[35] The Agency recognizes that having to make his own way to the baggage area or to the boarding line, as well as having to repeatedly ask for help and remind VIA's employees of his disability, must have been very difficult for Mr. Benjamin. The Agency accepts Mr. Benjamin's assertion that this was a stressful and frustrating travel experience.

[36] In light of the foregoing, the Agency finds that the level of assistance provided by VIA to Mr. Benjamin, at various instances during his round trip, constituted an obstacle to his mobility.

Whether the obstacle was undue

[37] As with the term "obstacle", the term "undue" is not defined in the CTA in order to allow the Agency to exercise its discretion to eliminate undue obstacles in the federal transportation network. The word "undue" also lends itself to a broad meaning; it is commonly understood to mean exceeding or violating propriety or fitness; excessive; inordinate; disproportionate. As something may be found disproportionate or excessive in one case and not in another, the Agency must take into account the context in which the allegation that an obstacle is undue is made. Under this contextual approach, the Agency must strike a balance between the rights of passengers with disabilities to use the federal transportation network without encountering undue obstacles and the carriers' commercial and operational considerations and responsibilities. This interpretation is in keeping with the national transportation policy set out in section 5 of the CTA and more particularly in subparagraph 5(g)(ii) of the CTA where it is stated inter alia that conditions under which carriers or modes of transportation operate must, as far as is practicable, not constitute an undue obstacle to the mobility of persons with disabilities.

[38] While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federal transportation network to adapt their services, as far as is practicable, to the needs of persons with disabilities. There are however some impediments that have to be taken into consideration, such as security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact of adapting services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board in their own wheelchair, they may have to arrive at a terminal earlier to allow time for boarding, and they may have to wait for a longer period of time for deboarding assistance than persons without disabilities. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments that transportation service providers will encounter in trying to meet the needs of persons with disabilities. A balance has to be struck between the various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concept of undueness.

The case at hand

[39] Having determined that the level of assistance that VIA provided to Mr. Benjamin constituted an obstacle to his mobility, the Agency will now consider whether the obstacle was undue.

[40] The Agency is aware that a notation in a passenger's booking information signals to the carrier, in advance of travel, a passenger's need for particular services or forms of assistance. The Agency notes that Mr. Benjamin made VIA aware of his need for assistance at the time of booking and throughout his round trip. In fact, the PNR includes three SSRs for Mr. Benjamin and explicitly notes that Mr. Benjamin is blind, travelling alone and requested pre-boarding assistance.

[41] The Agency notes that VIA only has two codes for pre-boarding: PBTS and PBGS. The Agency further notes that, although the SSR indicates that the code PBTS refers to pre-boarding for passenger at "origin station", VIA, in its submission dated March 3, 2004, indicated that the code PBTS refers to pre-boarding for passenger "in station". In light of this and based on the evidence filed, it is clear, however, that there is confusion regarding these codes and what services are contemplated, particularly as they relate to the code PBTS.

[42] The Agency also notes VIA's submission that the MSCQ SSR code can deal with a wide-ranging series of matters and is used to indicate the unique needs of a particular individual, including assistance with seating. However, it is apparent, as indicated by Mr. Benjamin's experience, that the use of such a code fails to ensure that services pre-requested by passengers with disabilities are provided to them.

[43] The Agency is of the opinion that the lack of specific SSR codes to denote the particular services that Mr. Benjamin required throughout his trip was a contributing factor to the difficulties experienced by Mr. Benjamin. In this regard, the Agency notes that Mr. Benjamin's ticket sets out the services he required using the SSR codes BLND, PBTS and MSCQ. The Agency further notes that the ticket, which reflected the MSCQ code without any explanatory notes, was presented by Mr. Benjamin to a VIA employee upon his arrival in Montréal, but that this did not result in Mr. Benjamin obtaining the assistance he needed. While the Agency acknowledges that an explanation of the services needed by a passenger with a disability follows the MSCQ code in the passenger's PNR, the Agency is of the opinion that specific codes to denote particular services are less subject to individual interpretation by station and train personnel, thereby enhancing consistency of service. The Agency is of the opinion that had VIA had specific codes for the particular services Mr. Benjamin required, it would have been readily apparent to all VIA's personnel who came in contact with Mr. Benjamin what services he required, particularly given that he showed his ticket to VIA's personnel. The Agency is also of the opinion that specific SSR codes provide a more effective tool to clearly communicate to transportation service personnel what services are required by persons with disabilities. When such codes are used in conjunction with dialogue with a person with a disability, the Agency is of the opinion that transportation service personnel will be well-positioned to know what particular services are required.

[44] In light of the foregoing, the Agency finds it appropriate for VIA to create a SSR code for situations where a person with a disability requires pre-boarding assistance at all stations. The Agency also finds it appropriate for VIA to create a specific code to denote assistance required with boarding, detraining, and connections. Further, in order to ensure that other specific services are provided to persons with disabilities, such as assistance with locating a passenger's seat and luggage, the Agency is of the opinion that VIA, like other transportation service providers, needs to create specific codes to denote such services and to ensure that its personnel are both made aware of these codes and trained to apply them appropriately.

[45] The Agency notes VIA's statement that "VIA hopes that if this situation should ever arise in the future, that Mr. Benjamin will make his disability known to the person to whom he is speaking so that there will be no confusion as to the assistance that he needs". In view of the evidence submitted by Mr. Benjamin, the fact that he requested services in advance of his travel and the fact that Mr. Benjamin was using a white cane, the Agency finds that the notion implied in VIA's statement that Mr. Benjamin is somehow responsible for VIA's failure to provide appropriate assistance is totally unacceptable. In this regard, the fact that Mr. Benjamin was using a white cane should have clearly demonstrated to VIA's personnel the nature of his disability and the assistance he required. Also, the Agency finds that there was nothing more that Mr. Benjamin could have done to ensure that VIA's personnel received the information that they required concerning the assistance he required due to his disability. The Agency also finds that VIA did not provide any evidence to justify why Mr. Benjamin was not provided with the appropriate assistance but was instead left unattended and uninformed despite repeated requests for assistance.

[46] In this respect, the Agency notes that if a customer informs VIA of a disability and makes a "special service request", VIA's procedure clearly indicates that in similar circumstances, it is the responsibility of the service manager to communicate to the passenger that a designated person from the station will escort him/her from the platform to the station or from the station to the platform. In the event of a connection train being necessary, the customer is to be asked to wait near an appropriate place for pre-boarding. When the train is ready for boarding, the customer is to be escorted by a station attendant to the respective car or escorted to the train personnel. Upon detraining, the passenger is supposed to be treated in the same manner. The Agency is concerned with situations such as the one experienced by Mr. Benjamin where employees fail to comply with important procedures such as these, especially in light of VIA's submission that these procedures are specific and known to train and station personnel.

[47] The Agency is also concerned with the manner in which Mr. Benjamin was treated, in particular when VIA's personnel at various instances indicated the location of the pre-boarding and baggage retrieval areas by pointing in response to requests for assistance. This kind of assistance is clearly inappropriate for a person who is blind and who uses a white cane. The Agency is of the opinion that this is indicative of a lack of training with respect to the services required by persons who are blind. In light of this, the Agency finds it appropriate for VIA to provide refresher training in respect of the services required by persons who are blind and to expand its training module in this respect.

[48] The Agency is aware that other transportation service providers in the federal transportation network use specific codes to denote particular services required by persons with disabilities. As noted above, specific SSR codes provide a more effective tool to transportation service personnel in providing appropriate services to persons with disabilities, particularly when used in conjunction with dialogue with a person with a disability. In this regard, the Agency is of the opinion that, in future, the use of specific SSR codes by VIA's station and train personnel will enable them to better follow established policies and procedures regarding persons with disabilities. The Agency expects that such measures should prove effective in preventing a recurrence of Mr. Benjamin's unfortunate travel experience.

[49] In light of the above, the Agency finds that the level of assistance that VIA provided to Mr. Benjamin, at various instances during his round trip, constituted an undue obstacle to his mobility.

CONCLUSION

[50] Based on the above findings, the Agency hereby orders VIA to take the following measures, within thirty (30) days from the date of this Decision:

- Forward a written apology directly to Mr. Benjamin, in an electronic format, with respect to his travel experience and provide a copy of the apology to the Agency;

- Provide a written copy of the Agency's decision to VIA's service managers and to the train and station personnel on duty in Ottawa, Montréal and Québec on October 6 and 10, 2003 and provide written confirmation of such to the Agency;

- Issue a bulletin to its agents, service managers, train and station personnel as well as train employees highlighting the incident experienced by Mr. Benjamin, without identifying his name, and emphasizing the importance of providing services requested and maintaining appropriate levels of awareness and sensitivity to the particular needs of travellers with disabilities. In addition, the bulletin shall reinforce the importance of following the carrier's policies and procedures with respect to the provision of services to a passenger with a disability;

- Provide the Agency with a copy of the bulletin, as issued;

- Report to the Agency on what policies and procedures have been developed to prevent a recurrence of the situation experienced by Mr. Benjamin.

- Create and implement additional SSR codes to denote specific services requested by persons with disabilities, particularly with respect to boarding assistance at all stations, assistance with detraining, as well as connections and provide written confirmation of such to the Agency;

- Describe, in detail, what steps will be taken to ensure that requests for specific services made by persons with disabilities, as communicated to VIA, are completely and accurately reflected in VIA's records, including the PNR, passenger manifest and tickets, in order that its service manager and train and station personnel are in a position to know the specifics of such requests to ensure that the needs of passengers with disabilities will be met;

- Incorporate this incident into its corporate training program, so as to ensure that similar incidents do not occur in the future, and provide the Agency with a modified training module.

[51] VIA is also ordered to provide refresher training to VIA's service managers and to the train and station personnel including those on duty in Ottawa, Montréal and Québec on October 6 and 10, 2003 in respect of persons with disabilities and the kind of assistance required, with particular emphasis on the services required to accommodate the needs of persons who are blind. VIA is required to provide a schedule with respect to conducting employee training within thirty (30) days from the date of this Decision.

[52] Following a review of the required information, the Agency will determine whether further action is required.