Agency Rulings

Decision No. 49-AT-R-2004

January 30, 2004

APPLICATION by Chantal Laprise 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 her when she requested information on the cost of a return trip between Toronto, Ontario, and Montréal, Quebec, for her attendant.

File No. U3570/03-30

---

APPLICATION

On August 31, 2003, Chantal Laprise filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

On September 19, 2003, VIA Rail Canada Inc. (hereinafter VIA) filed its answer to the application. On October 2, 2003, Ms. Laprise filed her reply to VIA's answer. Ms. Laprise filed a subsequent submission on October 10, 2003.

By Decision No. LET-AT-R-229-2003 dated November 14, 2003, the Agency requested that VIA submit additional information. On November 18, 2003, VIA requested an extension of time to reply to the Agency's request for further information. By Decision No. LET-AT-R-231-2003 dated November 19, 2003, the Agency granted VIA until November 29, 2003, to submit the requested information.

On November 30, 2003, Ms. Laprise submitted unsolicited information to the Agency. By Decision No. LET-AT-R-249-2003 dated December 12, 2003, the Agency provided VIA with details of the information filed by Ms. Laprise and requested that VIA submit both its comments on the details and the additional information that it had not yet filed in response to Decision No. LET-AT-R-229-2003. VIA filed its response on December 19, 2003.

Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until January 30, 2004.

PRELIMINARY MATTERS

Although Ms. Laprise and VIA each filed submissions after the prescribed deadlines, the Agency, pursuant to section 8 of the National Transportation Agency General Rules, SOR/88-23, accepts the submissions as being relevant and necessary to its consideration of this matter.

In her application, Ms. Laprise raises certain concerns relating to VIA's escort policy, particularly in relation to the criteria upon which a person with a disability must substantiate his/her request for a complimentary attendant fare.

The Agency notes Ms. Laprise's position that VIA's escort policy is excessive and an invasion of a person with a disability's personal privacy. In this respect, according to VIA's escort policy, a person requesting a complimentary attendant fare must present either a valid card from a recognized organization for persons with disabilities or a medical note stating that he/she requires assistance with one of the following three criteria--"eating, personal hygiene, or medical care". Ms. Laprise states that she does not understand why a medical note from her doctor generally confirming the need for her to travel with her attendant is insufficient for VIA. Furthermore, Ms. Laprise suggests that if medical professionals are having difficulty diagnosing her condition, VIA is surely not in a position to determine the extent of her personal needs.

The Agency also notes VIA's position that its policy regarding attendant fares and the related supporting medical documentation are reasonable requirements for establishing a person with a disability's eligibility to have his/her attendant travel free of charge on the VIA rail system. VIA further states that having a standard in place is necessary to control the granting of free attendant travel. VIA claims that the standards chosen are reasonable in the circumstances and do not constitute an undue obstacle to a person with a disability's mobility as they are set at a minimum level that is consistent with VIA's obligations to persons with disabilities, as established pursuant to section 5 of the CTA.

The Agency acknowledges that the concerns raised by Ms. Laprise regarding the content of VIA's escort policy constitute a significant portion of her application and it has considered each party's submissions on this particular issue. In this respect, the Agency notes that Ms. Laprise decided against providing VIA with a medical note for its review to substantiate her request that her attendant receive a complimentary attendant fare, and that she instead chose to travel by bus. The Agency also notes that as a result of this decision, VIA did not receive a medical note from Ms. Laprise and therefore could not interpret and apply the requirements of its escort policy in relation to an actual medical note.

In light of the foregoing, the Agency finds that the circumstances surrounding Ms. Laprise's dealings with VIA in this instance do not establish a sufficient basis for the Agency to examine the concerns raised by Ms. Laprise regarding the three criteria that VIA's escort policy identifies as being the necessary information that VIA requires to confirm an attendant's eligibility for a complimentary fare.

ISSUE

The issue to be addressed is whether the level of assistance that VIA provided to Ms. Laprise when she requested information on the cost of a return trip between Toronto and Montréal for her attendant constituted an undue obstacle to her mobility and, if so, what corrective measures should be taken.

FACTS

Ms. Laprise has a neuromuscular condition that has yet to be diagnosed. She experiences severe spells of weakness that may be triggered by activities such as, but not limited to, walking, climbing stairs, carrying luggage, exercising, taking certain medications and receiving local anaesthetics. These weakness spells can have a variety of effects on Ms. Laprise's physical condition, including partial or total inability to speak, blink, swallow and/or move any body part, and such effects may last up to seven days.

Ms. Laprise's weakness spells often necessitate the use of a wheelchair. When using a wheelchair, Ms. Laprise is dependent on an attendant because the weakness spells that she experiences affect her entire body, and she loses strength in her muscles. Ms. Laprise receives funding for her attendant from the Government of Ontario.

Ms. Laprise intended to travel from Sudbury, Ontario, to Montréal, Quebec on August 19, 2003 for a consultation and diagnostic procedure related to her condition, and she expected to return to Sudbury on August 21, 2003.

On August 12, 2003, Ms. Laprise contacted VIA through its call centre to inquire about return train fares between Toronto and Montréal, including the availability of complimentary attendant fares.

Ms. Laprise did not submit a copy of her medical note to VIA nor did she make a reservation with VIA. Instead, she travelled by bus to Montréal on August 19, 2003, returning on August 21, 2003.

As Ms. Laprise did not make a reservation with VIA, the reservation agent who spoke with Ms. Laprise created neither a reservation record nor any files or documents with respect to this matter. VIA was not able to identify the reservation agent with whom Ms. Laprise spoke.

VIA's "Policy on persons with disabilities" states, in part:

VIA will not be held responsible for providing personal care such as assistance with eating, personal hygiene or medical care. An escort must accompany any person with disabilities who cannot tend to their own personal needs en route (see Personal Assistance On-Board). The escort travels at no cost unless the person with disabilities is a child under the age of 8 or 8-11 years making connections or travelling overnight. VIA will accept the passengers own determination of whether they are self-reliant or not, or in the case of a child, VIA accepts the determination of a parent or other adult.

VIA's escort policy states, in part:

An escort must accompany any person with disabilities who cannot tend to their own personal needs (such as requiring assistance with eating, personal hygiene or medical care) en route. VIA will accept the passengers own determination of whether they are self-reliant, or not, [...].

The escort must be able to assist the person with disabilities getting on/off the train, in charge of all the necessary arrangements and tend to the personal needs and well being of the person with disabilities through the entire trip.

The escort will be carried free of charge in the same car and the same type of accommodation. [...].

To take advantage of the free escort privilege, the person with disabilities must present, for each trip, a valid card from a recognized association or institution for persons with disabilities or present a recent letter (maximum 9 months**), signed by a physician and stating that the person cannot tend to this/these personal needs:

- Assistance with:

- eating
- personal hygiene
- medical care

** In the case of "Permanent" disability, we can accept the same doctor's letter stating that the condition is permanent (no need to renew it every nine (9) months), as long as it indicates that the individual meets one of our 3 requirements for an escort - help with feeding, administering medications or assistance in the washroom.

Note: for accounting purposes, it is recommended to attach the original copy of the letter, but a photocopy is accepted.

VIA's "Personal Assistance On-Board" policy states:

On-Train personnel can offer the following services to clients with special needs:

- Assistance in entraining and detraining (customer must provide own assistance if travelling on Northern Services)
- Assistance in transferring between wheelchair and regular seat
- Assistance in loading and retrieving of carry-on items
- Assistance in moving to and from washrooms, other than by carrying the person
- Provision of special meals
- Room service in sleeper class at no additional cost
- Limited assistance with meals, such as opening packages and identifying foods
- Refrigerating medication
- Inquiring periodically about the person's needs during travel

VIA will not be held responsible for providing personal care such as assistance with eating, personal hygiene or medical care.

POSITIONS OF THE PARTIES

Ms. Laprise receives funding from the Government of Ontario, and she therefore had her doctor forward a note dated July 23, 2003 to the Government confirming her need to rely on the attendant during her anticipated travel. The note states, in part, "Ms. Laprise is unsafe for solo travel, and will require accompaniment by her personal support worker." In this regard, Ms. Laprise points out that the subsidy that she receives from Government of Ontario for her attendant requires that she travel with her attendant by the most cost-effective means.

Ms. Laprise states that due to her neuromuscular condition, she was concerned that the medical procedures scheduled to take place in Montréal would likely induce the severe weakness spells, and she therefore decided that she would require the assistance of her attendant for the trip.

Ms. Laprise submits that she informed the VIA reservation agent that while she might not require assistance during her trip to Montréal with any of the three tasks that he specifically identified, she would likely require a significant amount of help after having received the medical procedures, both while she remained in Montréal and during her return trip to Toronto. Ms. Laprise claims that when she spoke to the agent, he told her that the letter from her doctor had to state that she needed help with eating, medical care and personal hygiene. According to Ms. Laprise, when she explained that her medical note did not, the agent then asked her to go back to the doctor to get another letter. Ms. Laprise maintains that during her conversation with the VIA reservation agent regarding her attendant's fare, the agent did not want to understand her position and it was evident to her that he would not even review her letter in advance of travel and call her to advise if it was sufficient.

Ms. Laprise advises that the VIA call centre agent informed her that to ascertain her attendant's eligibility for a complimentary fare, she should forward a copy of the medical note that she wished to rely on to substantiate her attendant's eligibility for a complimentary fare to VIA's office at Union Station by facsimile in advance of travel, bring the original note with her to Union Station on her anticipated date of departure and then, while she waited at the station prior to her scheduled time of departure, VIA's staff would inform her whether it would accept her attendant as being eligible for complimentary travel.

Ms. Laprise insists that the reservation agent's suggestion that she and her attendant travel at their own expense from Sudbury to Union Station on the anticipated day of travel to only then find out from VIA's representatives whether her medical note was sufficient to substantiate her attendant's eligibility for a free fare is not only unreasonable, but beyond her means, as she could not afford the risk of travelling to Toronto only to be informed of VIA's decision not to permit her attendant to travel on a complimentary basis.

VIA submits that Ms. Laprise did not have a letter from her doctor stating that she needed help with eating, medical care and personal hygiene. VIA states that "Apparently, the agent insisted that she provide a medical letter meeting the above standard before an escort fare would be permitted for Ms. Laprise's personal support worker." In this regard, VIA notes that no such letter was ever received. VIA also refers to Ms. Laprise's statement that she did not want to pay for another letter.

In response to requests to determine the name of the agent who apparently spoke with Ms. Laprise, VIA states that it has no record of any reservation agent speaking with Ms. Laprise and that it can not locate the agent to whom Ms. Laprise refers. VIA also points out that as Ms. Laprise did not make a reservation, it has no record of any calls.

ANALYSIS AND FINDINGS

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

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 establish that the applicant is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

The Agency is of the opinion that it is appropriate to take a broad and functional approach to interpreting its mandate as established by Part V of the CTA. In this respect, the Agency notes that in Decision No. 482-AT-A-1998, it determined the words "persons with disabilities" to relate to both permanent and temporary disabilities, including temporary disabilities arising from medical conditions. As such, in view of its mandate regarding persons with disabilities and in recognition of its past decisions on such matters, the Agency finds that given Ms. Laprise's medical condition and the associated mobility concerns, she is a person with a disability within the meaning of subsection 172(1) of the CTA.

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

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.

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

The Agency notes that Ms. Laprise contacted VIA's call centre to reserve return tickets from Toronto to Montréal and specifically inquired about her attendant's eligibility for complimentary travel. The Agency further notes that VIA neither commented on Ms. Laprise's submissions concerning the information that she received from VIA's reservation agent, including the proposed procedure by which she could obtain VIA's determination of her attendant's eligibility for complimentary travel, nor on the discussion between Ms. Laprise and VIA's reservation agent as to the possibility of Ms. Laprise obtaining advance confirmation of her attendant's eligibility to receive a complimentary fare. In this regard, however, the Agency notes that VIA advised that it has no record of any reservation agent speaking with Ms. Laprise and that it is not able to identify the reservation agent to whom Ms. Laprise refers in her submissions.

Based on a review of the pleadings, the Agency accepts that Ms. Laprise communicated with a reservation agent at VIA's call centre and that the agent, in view of the fact that the letter from her doctor did not state that she required assistance with eating, medical care and personal hygiene, in order to meet the criteria set out in VIA's escort policy, advised Ms. Laprise that she should obtain another letter from her doctor.

Additionally, the Agency accepts that VIA's reservation agent, in response to a request from Ms. Laprise, offered, as an alternative to obtaining a letter from her physician that conformed with VIA's escort policy, that she could send her existing letter by fax to Union Station, bring the original letter with her and, once in Toronto on the day of departure, obtain VIA's determination on her attendant's eligibility for a complimentary fare. Finally, the Agency accepts that Ms. Laprise was advised by the reservation agent that he would not review Ms. Laprise's existing letter in advance of travel and contact her to say if it was sufficient.

In light of the foregoing, the Agency finds that the failure by VIA's reservation agent to suggest how Ms. Laprise might obtain confirmation, in advance of travel, of her attendant's eligibility for a complimentary fare resulted in considerable uncertainty and was a significant factor in Ms. Laprise's decision to not travel by train with VIA and to instead travel by bus. Therefore, the Agency finds that the failure by VIA's reservation agent to make such a suggestion to Ms. Laprise constituted an obstacle to her mobility.

Whether the obstacle was undue

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.

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

Having found that the level of assistance that VIA's reservation agent provided to Ms. Laprise and, specifically, the failure by the reservation agent to suggest how Ms. Laprise might obtain confirmation in advance of travel of her attendant's eligibility for a complimentary fare constituted an obstacle to her mobility, the Agency must now determine whether the obstacle was undue.

The Agency notes that Ms. Laprise acknowledged that the July 23, 2003 letter from her physician, which was written for another purpose, did not specify the criteria set out in VIA's escort policy. The Agency further notes that, in advising Ms. Laprise that she should obtain another letter from her physician, VIA's reservation agent followed VIA's escort policy, which requires that a letter submitted in order to take advantage of VIA's free escort privilege, be signed by a physician and state that the person with a disability requires assistance with eating, personal hygiene, or medical care.

The Agency further notes that in order to agree to Ms. Laprise's request to review her July 23, 2003 letter from her physician and advise her as to whether it would be sufficient to qualify her attendant for the free escort fare, VIA's reservation agent would have been required to go beyond what is stipulated in VIA's escort policy.

Accordingly, in light of the foregoing, the Agency finds that the failure by VIA's reservation agent to suggest how Ms. Laprise might obtain confirmation in advance of travel of her attendant's eligibility for a complimentary fare did not constitute an undue obstacle to Ms. Laprise's mobility.

Notwithstanding the foregoing, the Agency is of the opinion that there are two matters on which it should comment.

The Agency is of the opinion that an implicit component of an individual's willingness to rely on the federal transportation network is the individual's ability to determine available travel options, including relevant fares, in advance of travel. The Agency notes that such information allows an individual to make reasonable and informed decisions about his/her anticipated travel experience, which is a significant factor for all travellers, but which is especially significant for passengers with disabilities who have particular needs during travel and who have the added responsibility of ensuring that such needs will be met by the relevant transportation provider. The inability of a person with a disability to obtain a sufficient level of assurance, prior to travel, that his/her particular needs will be met during travel can result in the person with a disability experiencing significant stress and inconvenience, which may lead the individual to be disinclined from using the federal transportation network in the future.

Furthermore, this incident highlights the importance of record keeping for both the person with a disability and the transportation provider. The Agency, therefore, urges persons with disabilities, in particular, whether it be in the context of actually making a reservation or in anticipation of doing so, to keep as complete records as possible, including records of conversations, contact names and dates.

To ensure that incidents similar to the one experienced by Ms. Laprise do not occur in the future, the Agency strongly encourages VIA to issue a bulletin to its employees, including its reservation agents, which emphasizes the importance of providing a passenger with a disability with advance confirmation of his/her attendant's eligibility for complimentary travel in order that the passenger receives such information in a timely manner. In the event that there may be uncertainty regarding the attendant's eligibility, it would be beneficial to VIA to establish procedures so that reservation agents are better able to address this type of situation.

CONCLUSION

The Agency concludes that the level of assistance that VIA provided to Ms. Laprise was sufficient to disclose to her the carrier's escort policy and what was required in terms of a medical note. In this regard, it is important to note that Ms. Laprise decided not to provide another letter from her physician which would meet the criteria of VIA's escort policy.

In light of the foregoing, the Agency finds that the level of assistance that VIA Rail Canada Inc. provided to Ms. Laprise, including the fact that its reservation agent did not suggest how Ms. Laprise might obtain confirmation in advance of travel of her attendant's eligibility for a complimentary fare, did not constitute an undue obstacle to her mobility. Accordingly, the Agency contemplates no action in this matter.