Common menu bar links

As was set out in the March Decision, the Agency is of the opinion that, ideally, the wheelchair-accessible washroom should be located in the economy coach car proximate to the wheelchair tie-down and there should be an accessible sleeper unit, containing both a wheelchair-accessible bedroom and a wheelchair-accessible washroom, in the sleeper car.

VIA proposed, as an alternative to both an accessible washroom in the economy coach car and an accessible sleeper unit in the sleeper car, an "accessible suite" in the service car. This car would usually be marshalled with the "accessible suite" adjacent to the wheelchair tie-down in the economy coach car in order that persons using the wheelchair tie-down could use the washroom in the "accessible suite".

The Agency indicated in the March Decision that it was prepared to accept the washroom in the "accessible suite" as a reasonable alternative to a wheelchair-accessible washroom proximate to the wheelchair tie-down in the economy coach car and a wheelchair-accessible sleeper unit in the sleeper car provided that the suite meets the principle of easy access by reflecting an appropriate level of accessibility in the route between the wheelchair tie-down and the washroom, and in the facilities within the suite itself. The Agency's consideration of this route is set out in a separate section that follows below.

In the March Decision, the Agency determined that the "accessible suite" contained the following obstacles:

- the width of the doors in the "accessible suite" (both the exterior door into the sleeper unit and the inner door between the sleeper unit and the washroom);

- the insufficient space beside the toilet in the "accessible suite" to allow a person using a Personal Wheelchairs to effect a side transfer to the toilet;

- the fact that a person with a disability will not be able to retain a Personal Wheelchair in the "accessible suite"; and,

- the lack of a 150-cm [59.06"] turning diameter in the "accessible suite".

The undueness analysis of the above-noted obstacles is set out below in terms of: the obstacles in the washroom; the obstacles in the sleeper unit; and the lack of a 150-cm [59.06"] turning diameter within the suite.

Washroom in the "accessible suite"

There are two obstacles specific to the washroom in the "accessible suite": the width of the inner door between the sleeper unit and the washroom and the insufficient space beside the toilet to allow a person using a Personal Wheelchair to effect a side transfer to the toilet.

VIA asserted that the "accessible suite" cannot be enlarged because of the four unmoveable physical boundaries, namely; the external wall of the train, the wall beside the corridor, the wall beside the vestibule and the wall beside the storage and facility room which contains refrigerators and cold storage. In this regard, VIA asserted that the refrigerated storage cavities that house supplies must be kept in close proximity to the catering area and that the former ski rack area now houses the refrigeration generation equipment that could not be located underneath the car.

VIA submitted that due to the physical, structural, electrical and mechanical changes involved in any redesign of the space, there is no solution that will eliminate the obstacles. Finally, VIA asserted that, "By reason of these limitations, VIA Rail has concluded that any material change to increase the dimensions in the "accessible suite" is not physically possible."

CCD submitted that VIA has treated each of the walls in the "accessible suite" as immoveable but that this is simply not the case given that there is no structural barrier preventing either of the walls from being moved. CCD maintained that VIA has given no other reason why the proposed changes in use should not occur; rather, it has simply stated its conclusion without explanation. CCD also submitted that, by expanding the washroom approximately 30 cm [11.81"] into the former parcel room, it would be possible to extend the bedroom area to the end of the bed while providing a suitably wide washroom. CCD asserted that if the foregoing changes were made, the en suite washroom could be made wheelchair-accessible, including having a washroom door of 81 cm [31.89"] and a turning diameter of 150 cm [59.06"].

VIA maintained that it is major work to expand the washroom 36 cm [14.17"] into the neighbouring compartment. In response to the foregoing submissions by CCD, VIA submitted that the width of the door cannot be adjusted to permit a 170-cm diameter turning area, nor is it possible to lengthen the washroom to the aisle by including any storage space. VIA stated that it is not possible to carry out the renovations in the service car suite that were suggested by CCD.

Further, regarding the door to the washroom, VIA submitted that "it is not possible at all for the inner door of the washroom to be widened if the berths are to be kept in the "accessible suite". In response, CCD noted that Ron Woollam considers this an overstatement.

Additionally, CCD stated that even if the door to the washroom is not widened, there will still be a significant percentage of wheelchair users who would be able to enter the washroom but that none of them could make a side transfer or a forward transfer with the washroom door closed. CCD expressed the view that it would be much more dignified for those who could get through the doorway to use an en suite washroom, rather than to have to use the accessible washroom in the neighbouring coach car. CCD suggested that while it would be administratively difficult, it might be possible to identify which wheelchair users could use the en suite washroom, making it possible to also offer coach accommodation to another a person using a wheelchair or person with a service animal on the same train.

The Agency notes that VIA did not address the Agency's observations expressed in the March Decision that given that the square footage of the washroom in the "accessible suite" is significantly greater than that of the washrooms on other VIA trains, which washrooms CCD has submitted are functionally accessible to persons with disabilities, the washroom in the "accessible suite" could be reconfigured to make better use of the space within it to provide an adequate level of accessibility. Furthermore, the Agency also specifically noted in the March Decision the fact that VIA has prioritized the convenience offered by the location of the refrigeration equipment and storage for the service car lounge over the accessibility of the "accessible suite" by asserting that it is impossible to relocate this equipment. However, the Agency indicated in the March Decision that VIA has not shown that any inconvenience which may arise out of providing the required storage elsewhere on the train would significantly impact its operations. Finally, the Agency notes that in response to the two directions to show cause, VIA has made no submissions in this regard other than to continue to assert the impossibility of relocating the refrigeration equipment.

In its July 14, 2003 submission, VIA proposed a solution to the accessibility problems in the "accessible suite" which entails the removal of the bed from service cars used for "day trips in the corridor and from service cars attached to the tie-down area on the Eastern Canadian service" as well as the removal of the inner doorway to the washroom in order to provide "adequate space for turning and for toilet accessibility". However, the Agency is of the opinion that even if this proposed solution were to provide adequate space for manoeuvring and turning a Personal Wheelchair in the "accessible suite" in those select service cars, it does not address the obstacles presented by the width of the doorway to the "accessible suite".

Further, VIA's proposed solution does not address the lack of a wheelchair-accessible washroom in the "accessible suite" when it is sold as an accessible bedroom for overnight services. Consistent with the fundamental requirements for an accessible train consist, VIA should provide at least one accessible seating area (i.e., tie-down) with independent access to a wheelchair-accessible washroom for day trains, as well as a minimum of one wheelchair-accessible sleeper unit with independent access to a wheelchair-accessible washroom.

Based on the foregoing, the Agency concludes that VIA has not shown cause that it would not be possible, from a structural perspective, to remedy the obstacles in the washroom in the "accessible suite".

In its August 21, 2003 submission to the Agency, VIA stated that it objects to the propositions regarding the various preliminary undue obstacles in the Renaissance Cars that were put forward by Ron Woollam on the basis that they are, from a financial standpoint, extremely costly.

Other than the foregoing submission, VIA made only general assertions regarding the financial implications of remedying the preliminary undue obstacles in the Renaissance Cars. As discussed below regarding the financial implications of remedying the obstacles in the sleeper unit in the "accessible suite", the Agency is of the opinion that these general assertions are not sufficient to demonstrate that VIA cannot afford the costs of remedying the undue obstacles determined by the Agency to exist in the Renaissance Cars.

Based on the foregoing, the Agency concludes that VIA has not shown cause, from a financial perspective, that the width of the door into the washroom of the "accessible suite" and the insufficient space beside the toilet to allow a person using a Personal Wheelchair to effect a side transfer to the toilet cannot be remedied.

Sleeper unit in the "accessible suite"

As indicated above, the Agency has determined that VIA has not shown cause that it would not be possible, from either a structural or an economic perspective, to remedy the obstacles in the washroom in the "accessible suite". The Agency, therefore, finds that the insufficient width of the door between the sleeper unit and the washroom and the insufficient space beside the toilet to allow a person using a Personal Wheelchair to transfer to it constitute undue obstacles to the mobility of persons using Personal Wheelchairs.

The Agency recognizes that ideally the washroom in the "accessible suite" should be wheelchair-accessible. However, given that a wheelchair-accessible washroom and route will be provided in the adjacent economy coach car with the implementation of Option 3, with modifications, the Agency accepts that the location of this wheelchair-accessible washroom is a reasonable alternative for those persons who either cannot access the washroom facilities in the "accessible suite" or who prefer independent access.

Accordingly, the Agency will not require VIA to remedy the undue obstacles in the washroom in the "accessible suite" by addressing these obstacles in the washroom itself; rather, the Agency will require VIA to provide a washroom that is accessible to persons using Personal Wheelchairs at the tie-down end of the adjacent economy coach cars, as well as an accessible route.

There are two obstacles particular to the sleeper unit in the "accessible suite": the width of the exterior door to the suite and the fact that persons using Personal Wheelchairs will not be able to retain their wheelchair in the suite.

Regarding the exterior door to the "accessible suite", in its submission dated May 26, 2003, VIA stated that widening the entrance into the service car suite to 81 cm [31.89"] "...is possible (although not reasonable)" and submitted that this would require the complete redesign of the door, its pocket and the module that currently houses the control button.

However, in its submission dated August 21, 2003, VIA asserted that it did not acknowledge that widening the entrance into the service car suite to 81 cm [31.89"] was possible. VIA further submitted that 81 cm [31.89"] is not necessary under the Rail Code; rather, 79.5 cm [31.30"] is required by the Code.

CCD maintained that unless the door to the sleeper unit is widened, there will be no wheelchair-accessible sleeping space on the Renaissance trains. CCD pointed out that VIA, in its submission dated May 26, 2003, acknowledged that widening the entrance into the service car suite to 81 cm [31.89"] is possible but not reasonable. Finally, CCD requested that the Agency finalize its preliminary finding that this doorway constitutes an undue obstacle.

In response to CCD's assertion that, unless the door is widened, there will be no wheelchair-accessible sleeping space on the Renaissance trains, VIA submitted that this is inaccurate and exaggerated.

Regarding the ability of a person to retain a Personal Wheelchair in the "accessible suite", CCD stated that it agrees with the Agency that independence, through the retention of a person's own wheelchair, should be accorded the highest priority. CCD submitted that this is not only a matter of independence but also one of safety. CCD explained that many persons with disabilities could not safely sit on the sofa in the suite and that if they cannot be seated in their personal wheelchair while travelling, they would be confined to bed or, more likely, precluded from travelling altogether. CCD stated that having ready access to their own wheelchair will also enable many persons, who might be unwilling or unable to transfer onto an onboard wheelchair, to use the washroom independently. According to CCD, VIA has offered no reason why a basic accessible tie-down could not be located in the bedroom portion of the service car.

CCD explained that by expanding the washroom approximately 30 cm [11.81"] into the neighbouring compartment, it would be possible to extend the bedroom area to the end of the bed while providing a suitably wide washroom. CCD submitted that the larger bedroom area would make it easier to locate the tie-down beside the window thereby leaving the centre of the room unobstructed and that this, in turn, would allow a person with a disability to retain a Personal Wheelchair in the suite in a location of maximum benefit to the individual. CCD further submitted that, by expanding the bedroom, it would be possible to have an accessible tie-down situated facing forward, next to the window and offering a forward view with access to the folding table and also permitting an attendant to move through the bedroom into the washroom unobstructed.

In response to CCD's assertion that expanding the washroom approximately 30 cm [11.81"] into the neighbouring compartment will provide a larger bedroom to facilitate the location of a tie-down next to the window, VIA maintained that it is major work to expand the washroom 36 cm [14.17"] into the neighbouring compartment. VIA explained that it is not possible to extend the bedroom area at the end of the bed and still provide a suitably wide washroom. VIA concluded that CCD's suggestions made concerning the service car suite are not practicable.

Regarding the feasibility of widening the exterior door to the "accessible suite" to at least 81 cm [31.89"], although VIA asserted that the Rail Code requires 79.5 cm [31.30"] as opposed to 81 cm [31.89"], the Agency notes that the Rail Code refers to "wheelchair-accessible" doors in terms of the Canadian Standards Association Barrier-Free Design Standard (hereinafter the CSA Barrier-Free Design Standard), which is 81 cm [31.89"]. Further, in this regard, the Agency refers VIA to the March Decision at page 106 where the Agency determined that a door must be at least 81 cm [31.89"] in width in order to ensure that there is adequate space on either side of a Personal Wheelchair in order that a person using a Personal Wheelchair can safely and easily manoeuver through the door. Furthermore, the Agency notes VIA's statement in its August 21, 2003 submission that it never acknowledged that widening the exterior door to the "accessible suite" to 81 cm [31.89"] was possible, however, in its submission of May 26, 2003, VIA clearly stated that widening this door to 81 cm [31.89"] is possible although not reasonable. The Agency also notes that VIA did not explain in its August 21, 2003 submission why it is no longer of the view that it is possible to widen the exterior door to the "accessible suite" to 81 cm [31.89"].

Regarding the feasibility of installing a tie-down in the sleeper unit in order to permit persons using Personal Wheelchairs to retain their wheelchair in the "accessible suite", the Agency refers to the March Decision at page 110 wherein the Agency determined that because the dimensions of the clear floor space in the sleeper unit exceed the clear floor area required to accommodate a stationary Personal Wheelchair, the size of the sleeper unit will necessarily accommodate a Personal Wheelchair and a tie-down for a Personal Wheelchair. The Agency also noted that VIA, by its own submission, indicated that it is feasible to install a tie-down in the "accessible suite" but decided not to do so in order to avoid any isolation of persons with disabilities.

Furthermore, despite being specifically required to address the foregoing issues in the directions to show cause, VIA did not, in any way, address the issue of the installation of a tie-down in the "accessible suite". Therefore, the Agency finds that VIA has not provided any evidence to demonstrate either that the clear floor space in the sleeper unit cannot accommodate a tie-down for a Personal Wheelchair or that it is not structurally feasible to install such a tie-down in the sleeper unit.

Based on the foregoing, the Agency finds that VIA has not shown cause that it is not possible, from a structural standpoint, to remedy the obstacles in the sleeper unit in the "accessible suite" that are presented by the exterior door to the suite and by the inability of a person to retain a Personal Wheelchair in the sleeper unit.

CCD noted that no cost is cited in support of VIA's contention that the obstacle presented by the width of the exterior door into the "accessible suite" is not an undue obstacle.

The Agency notes that VIA did not present any financial arguments specifically addressing the undueness of the obstacles in the sleeper unit in the "accessible suite". Rather, in its July 14, 2003 submission where VIA made arguments regarding the feasibility of remedying the preliminary undue obstacles in the "accessible suite", VIA simply stated that it "...has explained the financial limitations under which it operates. In any event, any major expenditure for redesign, costings or manufacturing cannot be paid for by VIA Rail under its present corporate plan."

As previously discussed in the "VIA's general economic arguments regarding the obstacles in the Renaissance Cars" section, the Agency is of the opinion that VIA has not demonstrated to the Agency's satisfaction, by way of the various general arguments that it has made in response to the Agency's directions to show cause, why it cannot afford the costs of remedying the undue obstacles determined by the Agency to exist in the Renaissance Cars.

Based on the foregoing, the Agency concludes that VIA has not shown cause that it would not be possible, from an economic perspective, to remedy the obstacles in the sleeper unit in the "accessible suite".

Lack of a 150-cm [59.06"] turning diameter in either the sleeper unit or the washroom in the "accessible suite"

As indicated above, the Agency has determined that VIA has not shown cause that it would not be possible, from either a structural or an economic perspective, to remedy the obstacles posed by the insufficient width of the door into the "accessible suite" and the inability of persons to retain their Personal Wheelchairs in the sleeper unit in the "accessible suite". The Agency, therefore, finds that the insufficient width of the door to the sleeper unit and the inability of persons to retain their Personal Wheelchairs in the sleeper unit in the "accessible suite" constitute undue obstacles to the mobility of persons using Personal Wheelchairs.

However, the Agency notes that, unlike the washroom in the "accessible suite" in respect of which the Agency has determined that the implementation of Option 3, with appropriate modifications, will remedy these undue obstacles, Option 3 does not address the fact that there is no wheelchair-accessible sleeper unit anywhere on the Renaissance trains. In this way, the undue obstacles that have been identified by the Agency in the sleeper unit in the "accessible suite" must be remedied. Accordingly, as reflected in the "Corrective Measures" section that follows, the Agency will require VIA to remedy these obstacles by widening the door from the vestibule in the service car into the sleeper unit to at least 81 cm [31.89"], and by installing a wheelchair tie-down mechanism in the sleeper unit, thereby permitting a person to retain a Personal Wheelchair in the "accessible suite".

The Agency is of the opinion that, by addressing the foregoing undue obstacles and, in view of the fact that a washroom that is accessible to persons using Personal Wheelchairs will now be located in the economy coach cars adjacent to the "accessible suite" in the service cars, the sleeper unit in the "accessible suite" will provide an acceptable alternative to a wheelchair-accessible sleeper unit in the sleeper cars.

In addition to the obstacles in the sleeper unit and the washroom in the "accessible suite" that are discussed above, the Agency also found in the March Decision that the lack of a 150-cm [59.06"] turning diameter in either the sleeper unit or the washroom in the "accessible suite" constituted a preliminary undue obstacle to the mobility of persons who use Personal Wheelchairs.

In this regard, CCD submitted that the width of the door to the washroom could be adjusted to permit a 150-cm [59.06"] diameter turning area if the pocket for the inner door were located at the rear end of the bed. However, CCD explained that this would require that the wall between the bedroom and the washroom be moved so that the corner of the bed would no longer project into the washroom, obstructing turns, and that this would result in the washroom being 28 cm [11.02"] narrower at the place where the toilet is currently sited. CCD further explained that this, in turn, would compound the obstacle of insufficient space to make side transfers to the toilet (or forward transfers with the washroom door closed) unless an additional change was made. In this regard, CCD maintained that by lengthening the washroom to the aisle by including the storage space, which VIA has retrofitted for expanded refrigeration purposes, it would be possible for most persons to do face to face transfers onto a toilet facing the exterior of the train in addition to side transfers, provided folding transfer seats were installed on each wall beside the toilet.

The Agency notes that its finding that the lack of a 150-cm [59.06"] turning diameter in the "accessible suite" is a preliminary undue obstacle was based, in large part, on the premise that there needed to be a wheelchair-accessible washroom in the "accessible suite", given that the Agency had decided that it was willing to accept its location in the service car provided it afforded an adequate level of accessibility.

Specifically, in making its determination that there needed to be a 150-cm [59.06"] turning diameter in either the washroom or the sleeper unit in the "accessible suite", the Agency gave consideration to CCD's submission that a very high percentage of persons who use wheelchairs would not be able to enter the "accessible suite" facing forward and then turn around in order to transfer to the toilet from the side.

As discussed above, the Agency's determination that the lack of a 150-cm [59.06"] turning diameter within the "accessible suite" was a preliminary undue obstacle was primarily based on the difficulties that this would have caused to persons using Personal Wheelchairs attempting to enter the washroom and transfer to the toilet. The Agency was also of the opinion that the narrow width of the two doors in the "accessible suite" would compound these difficulties. However, in light of the fact that the wheelchair-accessible washroom will now be located in the adjacent economy coach car, the Agency is of the opinion that, while desirable, it is no longer essential that there be a 150-cm [59.06"] turning diameter within the "accessible suite" in order that there be an adequate level of accessibility within the suite.

Based on the foregoing, and on the basis that there will be a washroom that is accessible to persons using Personal Wheelchairs in the economy coach cars, the Agency is of the opinion that a 150-cm [59.06"] turning diameter within the "accessible suite" is not necessary for the accessibility of the suite and, therefore, the Agency finds that the lack of such a turning diameter is not an undue obstacle to the mobility of persons who use Personal Wheelchairs.

2. WASHROOMS IN THE ECONOMY COACH CARS

In summary, the Agency is of the opinion that VIA has failed to show cause to the satisfaction of the Agency why it cannot eliminate the following obstacles in the "accessible suite" which were identified by the Agency in the March Decision, namely: the width of the door to the sleeper unit and the door to the washroom; the inability of a person to retain a Personal Wheelchair in the "accessible suite"; and the insufficient space beside the toilet to allow a person using a Personal Wheelchair to effect a side transfer to it. As discussed above, the Agency has determined that the lack of a 150-cm [59.06 "] turning diameter in the "accessible suite" does not constitute an undue obstacle to the mobility of persons who use Personal Wheelchairs.

Furthermore, the Agency has determined that with the remedying of the undue obstacles in the sleeper unit in the "accessible suite", when considered in conjunction with the fact that a washroom that is accessible to persons using Personal Wheelchairs will now exist in the economy coach car, the sleeper unit in the "accessible suite" provides an acceptable alternative to a wheelchair-accessible sleeper unit in the sleeper car.

Background

As set out in the March Decision, the Agency is of the opinion that it is of fundamental importance to the accessibility of rail travel to persons with disabilities and, in particular, to persons who use wheelchairs, that trains have a wheelchair-accessible washroom that is proximate to a wheelchair tie-down.

As reflected in the March Decision, the Agency recognizes the importance of a person's own wheelchair to the person's independence, dignity, safety and comfort and, consistent with the principle of independent access, acknowledges that persons with disabilities should have the Option of remaining in their own wheelchair as much as possible. The Agency also expressed the opinion that rail cars should provide self-contained accessibility such that wheelchair tie-downs should be located close to wheelchair-accessible washrooms in order that persons can move between accessible features easily and independently.

In keeping with the foregoing, the Agency noted in the March Decision that the Rail Code provides that there be at least one wheelchair-accessible washroom in each coach car that has a wheelchair tie-down.

In the Renaissance trains, wheelchair tie-down mechanisms have been installed in the VIA-1 and the economy coach cars. However, as noted in the March Decision, although a tie-down mechanism has been installed at the location of the single removable seat in the last Row on the double-seat side of the VIA-1 coach cars, this removable seat has been identified by VIA as the seating in coach cars for persons with disabilities who travel with a service animal, such that it will not be available to accommodate a person using a wheelchair. Accordingly, for the purposes of this analysis, the Agency will only consider the tie-down installed in the economy coach cars.

Ideally, and in keeping with the Agency's views on the importance of self-contained accessibility, the wheelchair-accessible washroom should be in the economy coach car, proximate to the wheelchair tie-down. This design would promote the safe and easy access to facilities that persons who use Personal Wheelchairs require in order to have independent access on VIA's Renaissance trains.

Although the Renaissance economy coach cars contain three washrooms, one at one end of the car (the vestibule washroom) and two at the other end of the car proximate to the wheelchair tie-down, none of these washrooms is accessible to persons who use Personal Wheelchairs. Subsequent to fitting up the cars, VIA decided that it would not operate three washrooms in these coach cars and, thus, had decommissioned the vestibule washroom and kept the two at the other end of the car available for use. However, as a result of the concurrent rail safety initiative undertaken by Transport Canada, VIA is now proposing to implement Option 1 whereby it would recommission the vestibule washroom and decommission the two at the other end of the car and replace them with "valet/storage", thereby leaving no washroom at the end of the car where the wheelchair tie-down is located.

As indicated above and in the March Decision, the Agency is of the opinion that persons with disabilities must have access to accessible washroom facilities while travelling and that, ideally, a wheelchair-accessible washroom should be proximate to the wheelchair tie-down in the economy coach car. As such, the Agency, in the March Decision, concluded that because the washrooms in the economy coach cars containing the wheelchair tie-downs are not accessible to persons who use Personal Wheelchairs, this constitutes an obstacle to their mobility. However, in the March Decision, the Agency deferred its undueness analysis regarding the fact that the economy coach car washrooms are not accessible to persons who use Personal Wheelchairs until it had finalized its undueness determinations regarding the obstacles in the "accessible suite". In this regard, the Agency was willing, given the design of the Renaissance Cars, to accept the location of the "accessible washroom" in the "accessible suite", provided that it affords an appropriate level of accessibility to persons who use Personal Wheelchairs.

As set out above in the "Accessible suite" section, the Agency has found that the washroom in the suite does not provide an appropriate level of accessibility, as it will not permit persons who use Personal Wheelchairs independent access to the washroom and the facilities therein. Specifically, the Agency has determined that there are two undue obstacles in the washroom in the "accessible suite". As a result of these undue obstacle findings, the Agency is of the opinion that the washroom in the suite is not a reasonable alternative to a wheelchair-accessible washroom in the economy coach cars proximate to the wheelchair tie-down. This, in turn, results in the need for the Agency to examine the accessibility of the washrooms in the economy coach cars.

As it has now become apparent that the existing washrooms at the tie-down end of the economy coach cars, which were the subject of the March Decision, will no longer be in use as a result of Transport Canada's safety notice, the Agency will examine the accessibility of the washroom facilities in the economy coach cars in terms of the plans for the Option 1 washroom.

Option 1

VIA stated, in its June 2, 2003 submission, that Option 1 provides for an existing "washroom footprint" to be recommissioned. The accompanying chart to VIA's submission describes Option 1 as entailing the closure of the two washrooms affected by Transport Canada's safety process and the recommissioning of the third washroom in the vestibule at the front of the car. In terms of the disadvantages of Option 1, the chart notes that the "new toilet layout is quite compact". Finally, VIA stated, in its June 2 submission, that in respect of Option 1, "...the only benefit and only relevance to the accessibility issue are that the passageway to the accessible washroom will be wider."

CCD expressed the view that the Option 1 washroom represents a "new barrier" for persons with disabilities. CCD asserted that this washroom would be uncomfortably small for virtually all passengers and that persons who are obese or who use a cane or a walker could only use it with extreme difficulty, if at all. CCD noted that there is no wall pocket for the door to retract into and, consequently, the doors must swing inwards, thereby significantly limiting the useable space in the washroom. CCD further noted that persons who can transfer from a wheelchair into low seats or use their own wheelchair in the tie-down and who can walk short distances, would be unable to use the Option 1 washroom given its location at the front of the car. Finally, CCD expressed the view that staff and passengers with disabilities are exposed to greater risk of injury as a result of having to make additional transfers onto onboard wheelchairs and that, as a result, VIA is exposed to a greater risk of liability if it proceeds with Option 1.

The Agency infers from VIA's characterization of the Option 1 washroom that, as this washroom was not intended to be accessible, it will be quite compact compared to the other washrooms which are also inaccessible and will be in no way accessible to persons who use Personal Wheelchairs. While VIA has not provided the Agency with dimensions for the proposed Option 1 washroom, it appears from the diagram submitted by VIA that it would be inaccessible to persons who use wheelchairs, both by the width of its doorway and its interior configuration. Furthermore, it is apparent that the washroom would be inaccessible to persons using Personal Wheelchairs by virtue of the 65-cm [25.59"] aisle that connects the wheelchair tie-down at the opposite end of the car to this washroom. In this regard, as noted at page 65 of the March Decision, the Agency determined that the aisle in the coach car that is between the seats constitutes an obstacle to the mobility of persons who use Personal Wheelchairs, on the basis that its width is less than 81 cm [31.89"].

In light of the above, it is apparent that the Option 1 washroom would not be accessible to persons using Personal Wheelchairs. Therefore, the Agency finds that this washroom constitutes an obstacle to the mobility of persons using Personal Wheelchairs.

Undueness analysis

It is apparent that modifications will be required to the route between the tie-down and the Option 1 washroom and to the Option 1 washroom itself in order to make the washroom accessible to persons using Personal Wheelchairs.

With respect to the modifications that would be required to the route, it is apparent that the aisle between the tie-down and the washroom would need to be significantly widened, either by removing one-third of the seats in the economy coach car or by installing narrower seats, possibly on a different platform. The structural and economic implications of such modifications are obviously very significant.

In the chart accompanying its June 2, 2003 submission, VIA stated that in respect of the advantages of Option 1, there would be no loss of seat revenue and it is the least costly option. However, as noted above, in order for a person occupying the tie-down or the "accessible suite" to be able to access this washroom, it may be necessary to remove one-third of the seats in order to ensure that the aisle between these two areas is sufficiently wide to accommodate a person using a Personal Wheelchair. As reflected in the March Decision, the Agency is of the opinion that the ongoing loss of passenger seat revenue associated with the removal of one-third of the seats in the economy coach car would be significant. In fact, the Agency is of the opinion that an ongoing loss of such a substantial portion of passenger seat revenue would have a significant impact on the financial viability of the operation of the Renaissance Cars. Furthermore, even if the aisle could be widened to 81 cm [31.89"] by installing narrower seats, such a modification would entail very substantial costs.

With respect to the modifications that would be required to the Option 1 washroom, it is apparent that, in order for it to be accessible to persons using Personal Wheelchairs, it would need to be enlarged and, in order to do so, some of the nearby seats would need to be removed, thereby increasing the cost to implement Option 1.

The Agency has already noted the fundamental importance of having a washroom proximate to the tie-down that is accessible to persons using Personal Wheelchairs; however, it is apparent that in order to provide this level of accessibility in respect of the Option 1 washroom, there would be significant structural and economic implications in doing so. However, since the March Decision, the Agency has been made aware that one of the options for addressing Transport Canada's safety concerns, Option 3, would provide a wheelchair-accessible washroom and, given the significant problems associated with modifying the Option 1 washroom in order to provide an adequate level of accessibility to persons using Personal Wheelchairs, the Agency will consider Option 3 in the context of its undueness analysis of Option 1.

Option 3

As discussed above, VIA's submissions indicate that Option 3 provides for a wheelchair-accessible washroom which would be located across the aisle from the wheelchair tie-down. This Option provides for the closure of both the vestibule washroom and the washroom on the single-seat side of the car near the wheelchair tie-down, the relocation of the wheelchair tie-down to the single-seat side of the car, and the enlargement and reconfiguration of the washroom on the double-seat side of the car near the wheelchair tie-down to make it wheelchair accessible.

In his report dated August 14, 2003, which was included with CCD's submission of August 18, 2003, Ron Woollam expressed the view that in relation to the width of the double seats, it appears that the clear floor space of the Option 3 washroom is roughly the same as the "wheelchair footprint", i.e., 75 cm x 120 cm [29.53" x 47.24"]. Mr. Woollam further expressed the view that assuming that the width of the door is approximately 81 cm [31.89"], if a person using a wheelchair backs into the washroom, a right side transfer to the toilet may be feasible but that it would be impossible to perform a front or left side transfer. Mr. Woollam also maintained that a forward entry into the washroom would not permit any transfer to the toilet.

Mr. Woollam submitted that in order for the washroom to be truly accessible, similar to that provided in the existing VIA-1 washrooms, the size and orientation of amenities would need to be modified. Mr. Woollam maintained that a washroom comparable to the VIA-1 washroom could be created if the double seats in front of the tie-down were removed and the washroom lengthened. He further explained that the doorway could then be moved toward the forward end of the washroom but still remain within the length of the adjacent tie-down space in order to facilitate turning and entry into the washroom. Additionally, Mr. Woollam pointed out that a drop down seat could be provided on each side wall if the toilet is mounted centrally on the back wall facing toward the front end of the car. Mr. Woollam noted that both the accessible washroom provided for under the Americans with Disabilities Act (hereinafter the ADA) and the VIA-1 washrooms make use of fold-down seats for this purpose. According to Mr. Woollam, this arrangement could accommodate a frontal approach to the toilet or a right or left side transfer to the drop down seats.

Additionally, Mr. Woollam contended that if the washroom were lengthened to 153 cm [60.24"] as required under the ADA, which he notes is comparable, at 147.3 cm [58"], to the length of the VIA-1 washrooms, the door width could be widened because of the ability to increase the pocket size. Mr. Woollam expressed the view that the door should be at least approximately 91.5 cm [36"], similar to the width of the door to the VIA-1 washrooms, in order to facilitate an angled entry into the washroom. Mr. Woollam pointed out that the technology for this is readily available in Canada and that entry into the washroom would be in a forward direction, thereby making independent operation of the automatic door opener more possible. Finally, Mr. Woollam noted that the width and position of the door will determine whether there will be a clear turning diameter of 150 cm [59.6"].

The Agency notes CCD's assertion that, in order to make the Option 3 washroom wheelchair accessible, it would be necessary to make the following modifications to its underlying design:

a) a toilet situated at the rear and facing forward in the washroom with folding transfer seats on either side;
b) a door towards the forward end of the washroom that slides into a wall pocket and that is at least 90 cm [35.43"] wide, with a wider door if this is required to provide a 150 cm [59.6"] diameter turning area inside the washroom and also in the tie-down space; and,
c) clear floor space inside the washroom of at least 120 cm [47.24"] in width and 160 cm [62.99"] in length to allow turning to face the toilet for face to face transfers with the door closed and side transfers to the folding transfer seats.

Regarding the clear floor space inside the washroom, CCD submitted that it would be necessary to remove the double seats in Row 16 in order to ensure that the clear floor length is adequate.

In its submission dated July 14, 2003, VIA stated that "Option three has no structural implications for the renaissance trains." Further, in response to the views expressed by Mr. Woollam on how the Option 3 washroom could be made wheelchair accessible, VIA stated in its August 21, 2003 submission that it objects to the propositions put forward by Mr. Woollam because, in part, they are "impracticable, extremely costly and would require the reconfiguration of electrical and other equipment which cannot reasonably be accomplished."

In addition, in response to CCD's suggestions for modifications to the Option 3 washroom in order to ensure that it is accessible to persons who use wheelchairs, VIA submitted that they are "extensive and there is not enough floor space to provide a 150 centimetre diameter because a double seat is only 128 centimetres of space;".

Regarding CCD's submission that it would be necessary to remove the double seats in Row 16 in order to ensure that the clear floor length of the Option 3 washroom is adequate, given that the diagram and information provided in respect of the Option 3 washroom do not disclose any dimensions concerning this space, the Agency cannot determine with certainty whether the removal of these seats would be necessary. However, the Agency notes that in addition to the actual dimensions of a washroom, the configuration of the space vis-à-vis the location of the toilet and other features within the washroom, in addition to the space provided by the doorway and adjacent area for turning and manoeuvring in order to access the washroom, are very important in determining whether the washroom will provide an adequate level of accessibility for a person using a Personal Wheelchair. The Agency also notes that it will further consider CCD's submission in this regard in the context of its examination of the general arrangement on how VIA intends to implement the corrective measures required by this Decision, which VIA is required to file with the Agency for its review and approval.

Also, as a result of the lack of dimensions for the Option 3 plan, it is difficult for the Agency to determine, with any certainty, what specific modifications are necessary in order to ensure that the washroom is accessible to persons using Personal Wheelchairs or whether there are modifications, in addition to those suggested by CCD, which would meet the same objective. With respect to the latter, the Agency is of the opinion that it may be possible to design the washroom such that the toilet is situated directly behind the Row of double seats, possibly on an angle in the corner of the washroom, and potentially with transfer seats installed on either side, and in such a way that the door to the washroom is located at the end closest to the CEM Zone. If such modifications to the Option 3 design were made, the Agency is of the opinion that persons using Personal Wheelchairs could use the turning space currently depicted as "future valet/storage"on the single-seat side of the car, in addition to the space that would be provided by locating the door at this end of the washroom, in order to manoeuver and turn their wheelchair to enter the washroom and transfer to the toilet. In this regard, the Agency notes CCD's view that depending on the width and positioning of the doorway to the Option 3 washroom, there can be both an adequate turning radius outside and inside the washroom, notwithstanding the fact that the Renaissance trains are narrower than other trains in service in North America. It should be noted that a more detailed discussion of the turning space necessary to allow a person using a Personal Wheelchair to access the washroom is discussed in the "Tie-down" section that follows.

Based on the foregoing, it appears that there may be modifications, other than those suggested by CCD, that would ensure that the Option 3 design provides for an adequate level of accessibility to persons using Personal Wheelchairs. Regardless, the Agency notes that VIA is required by the corrective measures set out in this Decision to make whatever modifications are necessary in order to ensure that there is a washroom in the economy coach car proximate to the tie-down that can accommodate persons using Personal Wheelchairs. In this regard, the Agency refers VIA to the March Decision for guidance as to what features are necessary to ensure that a washroom is accessible to persons using Personal Wheelchairs. Essentially, while giving consideration to the location of the washroom and its doorway vis-a-vis adjacent areas that will provide manoeuvring and turning space for a person using a Personal Wheelchair, the Option 3 washroom, with appropriate modifications, must have, as a minimum, a doorway opening of at least 81 cm [31.89"]; adequate clear floor space to accommodate a person using a Personal Wheelchair; and the washroom must be configured so as to allow a person using a Personal Wheelchair to access the sink and to transfer to the toilet.

Given that Option 3 was developed and approved by VIA for submission to Transport Canada and approved by the latter from a safety perspective and, given that VIA, itself, in its July 14, 2003 submission, stated that Option 3 has no structural implications for the Renaissance Cars, there is no doubt that Option 3 is structurally feasible. Furthermore, even with the modifications necessary to ensure an adequate level of accessibility for persons who use Personal Wheelchairs, there is nothing to indicate that there would be structural impediments to implementing the modifications to Option 3 necessary to ensure adequate accessibility. In this regard, as reflected in the March Decision, while a modification that would affect the CEM Zone or the car body may be considered to raise a significant structural impediment to implementing a modification, this is not the case with the modifications to Option 3, as discussed above, that would likely be necessary to ensure an adequate level of accessibility to persons using Personal Wheelchairs.

The chart included under Tab 7 and the cost estimates provided under Tab 9, which were included with VIA's July 14, 2003 submission, indicate that the per car cost to implement Option 3 is $100,800 and that the total estimated cost, before considering any costs associated with lost revenues, is $4.8 million.

The Agency notes CCD's comment, in its August 18, 2003 submission, that the costs associated with installing the "valet/storage" in the economy coach cars where the two inaccessible washrooms currently exist, are not attributable to making the cars accessible. Although, in this regard, the Agency agrees with CCD's view, given that costs to install similar storage space are also included in the total cost reflected in Tab 7 for Option 1, for the purposes of this discussion, the Agency is of the opinion that it is not necessary to discount these costs from the estimated costs to implement Option 3.

Notwithstanding the foregoing, the Agency notes that the estimated cost of $4.8 million pertains to 47 coach cars which include 14 VIA-1 coach cars. Given that CCD's application refers to the economy coach cars and their accessibility, the Agency has decided not to consider the costs attributable to the VIA-1 coach cars in its examination of the obstacle posed by the lack of a washroom in the economy coach cars that is accessible to persons using Personal Wheelchairs. The Agency is, therefore, of the view that the $4.8 million total estimated capital cost of implementing Option 3 provided by VIA is, for the purposes of the Agency's analysis of the economic factors associated with Option 3, overstated by $1,411,200 [$100,800 x 14 VIA-1 coach cars], such that the cost to implement Option 3 that is relevant for the matter at hand is $3,326,400 [$100,800 x (47 coach cars - 14 VIA-1 coach cars].

Further, regarding VIA's estimate of the cost to implement Option 3, the Agency notes CCD's argument that, given that VIA is obligated to make modifications to the coach car washrooms as a result of Transport Canada's safety notice and that the estimated cost of implementing the Option favoured by VIA, being Option 1, is $2.3 million, the "net cost" of Option 3 that is attributable to the accessibility of the economy coach cars is $2.5 million [$4.8 - $2.3 million]. CCD further argues that, given that VIA has estimated the cost of remedying the obstacles in the tie-down space planned for under Option 1 at $1.237 million and, given that this cost would need to be incurred in order to meet the Agency's requirement for a tie-down that is accessible to persons using Personal Wheelchairs if VIA were to implement Option 1, the true cost of implementing Option 1 is $3.537 million [$2.3 million + 1.237 million], such that the "true" net capital cost of implementing Option 3 is $1.263 million [$2.5 million - $1.237 million].

In response to CCD's views on the costs associated with the implementation of Option 3, VIA asserted that these are "entirely incorrect, the capital cost is incorrect and the savings argument is unsubstantiated". As has been previously discussed in the "Preliminary Issues - VIA's response to the directions to show cause" section, VIA must, in response to a show cause, provide the Agency with specific and substantiated submissions. Merely stating that CCD's views on costs are "entirely incorrect" without stating why does not assist the Agency.

The Agency has considered the foregoing positions of CCD and VIA regarding the cost of implementing Option 3, and is of the opinion that for the purposes of the Agency's analysis of the financial implications of implementing Option 3, the costs attributable to Option 1 should be netted against the foregoing revised estimated total capital cost to implement Option 3 of $3,326,400 in order to arrive at a more appropriate cost. In this regard, the Agency notes that VIA will invariably incur substantial costs to address the safety concerns regarding the location of the washrooms in the various coach cars vis-a-vis the CEM Zone and based on VIA's estimated costs for Option 1, these will be at least $2.3 million. However, given that the $2.3 million estimated cost to implement Option 1 also includes the costs attributable to modifying the 14 VIA-1 coach cars, the amount relating to Option 1 that should be netted against the cost of implementing Option 3 is $1,614,000 [$2.3 million - ($49,000 to modify each car x 14 VIA-1 coach cars). Accordingly, the Agency is of the opinion that the more relevant "net" capital cost to implement Option 3 is $1,712,400 [$3,326,400 - $1,614,000]. The Agency notes that for the purposes of the discussion that follows, this cost is referred to as being the cost under the "worst case scenario".

The Agency notes that the foregoing "net" capital cost attributable to Option 3 reflects the cost to implement this Option in 33 economy coach cars. However, as previously set out in the discussion of the framework for this Decision, the Agency notes that the fundamental requirements for passenger train accessibility as they pertain to the Renaissance train consists as represented by VIA and as reflected in the March Decision at pages 129 to 132, apply to 13 economy coach cars as opposed to 33 economy coach cars. Therefore, the undue obstacle posed by the lack of a washroom that is accessible to persons using Personal Wheelchairs in the economy coach cars could be remedied by VIA in respect of 13 economy coach cars as opposed to 33 economy coach cars, provided that, in the operation of the Renaissance trains, the fundamental requirements for passenger train accessibility are, at all times, met. In this way, the "net" capital cost to implement Option 3 under the "best case scenario" is $673,400 [($100,800 - 49,000) x 13 economy coach cars].

Having established that the net cost to implement Option 3 under the "best case scenario" is $673,400 and the similar cost under the "worst case scenario" is $1,712,400, the Agency also notes that given that the cost estimates provided by VIA do not reflect the various stages of completion of the coach cars, these net costs are necessarily overstated. While VIA was directed by the Agency in its Decision No. LET-AT-R-130-2003 dated June 9, 2003 to provide a break-down of the number of cars by stage of completion and the related cost estimates of implementing Option 3, VIA's response to this direction was limited to its statement contained in its August 7, 2003 submission that it has no plans to "build out the remaining shells", including the two service car shells. As such, as a result of VIA's failure to provide this information, it is not possible for the Agency to determine by how much these estimates are overstated. Regardless, and notwithstanding CCD's submission that the $1.237 million estimated by VIA to make the existing tie-down accessible should be netted against the cost of implementing Option 3, the Agency finds that the cost of implementing Option 3, as represented by VIA, is not only overstated as a result of including the costs applicable to the VIA-1 cars but also as a result of VIA's failure to reflect, in the cost estimates provided to the Agency, the various stages of completion of the Renaissance Cars.

Finally, while the Agency notes that VIA attributed an estimated $24.2 million in foregone passenger seat revenue to Option 3 and characterizes this as "operational implications" of implementing Option 3, the Agency considers this information more directly relevant to the Agency's analysis of the economic feasibility of addressing the obstacles in the tie-down and, therefore, its analysis of this is contained in the "Wheelchair tie-down in the economy coach cars" section. Thus, the following analysis does not consider these "operational implications".

Based on the foregoing, it is apparent that the cost of implementing Option 3, before considering any lost revenue, is substantially lower than the $4.8 million represented by VIA, particularly considering that the real cost of implementing Option 3 is, at most, the $4.8 million cost of Option 3 less the $2.3 million cost of Option 1; that is $2.5 million. Arguably, an even more relevant or truer cost for the Agency's analysis of the financial feasibility of Option 3 is $1,712,400, which is the estimated cost to implement Option 3 adjusted for the VIA-1 cars, netted against the similarly adjusted cost to implement Option 1.

Furthermore, the Agency notes that VIA has not presented any specific arguments why it could not financially afford the costs of implementing Option 3. Although VIA indicated that Option 3 would be more expensive than Option 1, it has not demonstrated that it cannot afford to implement Option 3. In particular, VIA's response to the show cause requirement to provide verifiable evidence to support its view that it cannot, from a financial perspective, afford the costs associated with the implementation of Option 3, lacks detail and specificity. The Agency finds that VIA has largely made general assertions in this regard, similar to those it made in response to the direction to show cause contained in the March Decision. Although VIA asserted that its revenues as at June 30, 2003 are lower than those from the previous year ending June 30, 2002, the Agency finds that this fact is not indicative of an inability on VIA's part to absorb the costs associated with Option 3.

3. SLEEPING ACCOMMODATION IN THE SLEEPER CARS

In summary, as set out in the preceding "Accessible suite" section, the Agency has concluded that there are undue obstacles in the washroom in the "accessible suite" and, accordingly, the Agency has concluded that it is not a reasonable alternative to a wheelchair-accessible washroom located proximate to the wheelchair tie-down in the economy coach cars. In view of this, the Agency has considered the accessibility of the washroom facilities in the economy coach cars and, given VIA's intent to implement Option 1, the Agency has examined the washroom proposed by this option. In this regard, as discussed above, the Agency has concluded that the Option 1 washroom does not provide for a wheelchair-accessible washroom with safe and easy access to the tie-down and cannot provide for one without very substantial and potentially prohibitive, ongoing losses in passenger seat revenue. Accordingly, the Agency finds that the Option 1 washroom constitutes an undue obstacle to the mobility of persons using Personal Wheelchairs.

In light of the fundamental importance of a wheelchair-accessible washroom to the accessibility of rail travel to persons who use Personal Wheelchairs and given the potential for Option 3, with appropriate modifications, to provide such a washroom in the economy coach cars thereby remedying the undue obstacle posed by the Option 1 washroom, the Agency has determined that it is appropriate to consider the structural and economic feasibility to implementing Option 3, with appropriate modifications, to provide a wheelchair-accessible washroom in the economy coach cars. In its consideration of the Option 3 washroom, the Agency has determined that it is possible to implement this option, both from a structural and an economic standpoint. Furthermore, as will be seen below from the Agency's examinations of the tie-down and the route between the tie-down and the "accessible suite" in the adjacent service car that follow, it is clear that there are significant economic advantages to implementing Option 3 as it will, with appropriate modifications, resolve the vast majority of the obstacles in the economy coach cars in addition to resolving the undue obstacles presented by the washroom in the "accessible suite". Accordingly, the Agency has found that the Option 1 washroom constitutes an undue obstacle to the mobility of persons using Personal Wheelchairs and, as reflected in the "Corrective Measures" section in this Decision, the Agency will require VIA to implement Option 3, with appropriate modifications, to ensure that there is a washroom that provides safe and easy access to persons using Personal Wheelchairs proximate to the tie-down in the economy coach cars.

In the same way that access to accessible washroom facilities is fundamental to the accessibility of rail travel to persons with disabilities, so too is access to accessible sleeping accommodation in night train consists that provide sleeping car facilities.

The Agency notes that the foregoing is consistent with the Rail Code which provides that, eventually, every passenger train that provides sleeping car facilities should have at least one sleeping car that has at least one wheelchair-accessible bedroom and washroom and that, until such time as this goal is reached, any newly manufactured sleeping car to be used on or after April 1, 2001, or any existing sleeping car undergoing a major refurbishment to be used on or after that same date, should provide such accommodations to persons who use Personal Wheelchairs.

Given that none of the sleeper cars on VIA's Renaissance trains provide for a wheelchair-accessible sleeping compartment, including a wheelchair-accessible washroom, the Agency concluded in the March Decision that this constitutes an obstacle to the mobility of persons who use Personal Wheelchairs.

In the March Decision, the Agency noted that at the time that the Rail Code was developed, it was anticipated that all sleeper units, including the wheelchair-accessible sleeper unit, would be located in sleeper cars. However, while the Agency recognizes the importance of the goal of integration of persons with disabilities, the Agency also recognizes that, practically speaking, full integration is not always possible due to such factors as economic constraints and structural limitations which impact on the ability to provide for the full integration of persons with disabilities.

Further, the Agency recognized in the March Decision that although the ultimate aim of the Rail Code with respect to sleeper cars is that there should always be a sleeper unit that is accessible to persons who use Personal Wheelchairs in a train consist and that the "accessible suite" should ideally be located in the sleeper car, in view of the design of the Renaissance Cars, the Agency accepts that its location in the service car may be a reasonable alternative, provided that it reflects an appropriate level of accessibility.

However, the Agency in the March Decision identified several preliminary undue obstacles in the "accessible suite". In addition and as previously discussed in the "Accessible suite" section, the Agency has now finalized its determinations regarding the undueness of these obstacles and concludes that the following constitute undue obstacles to the mobility of persons using Personal Wheelchairs:

- regarding the washroom, the width of the door and the insufficient space beside the toilet to allow a person using a Personal Wheelchair to effect a side transfer to the toilet; and,

- regarding the sleeper unit, the width of the door and the fact that a person with a disability will not be able to retain a Personal Wheelchair.

In making its determination that the obstacles in the washroom in the "accessible suite" are undue, the Agency has concluded that the washroom in the "accessible suite" does not provide an appropriate level of accessibility and, therefore, has rejected it as an alternative to a wheelchair-accessible washroom in the economy coach cars. Furthermore, given the fundamental importance of an accessible washroom to the accessibility of rail travel for persons who use wheelchairs and in view of the viable alternative presented by Option 3 to have a wheelchair-accessible washroom proximate to the tie-down in the economy coach cars, the Agency has determined that a wheelchair-accessible washroom needs to be provided in the economy coach cars by implementing Option 3, with appropriate modifications, to ensure that the washroom is accessible to persons using Personal Wheelchairs.

In its examination of the undueness of the obstacles in the sleeper unit, the Agency has determined that VIA has not shown cause why the obstacles posed by the inadequate width of the door into the sleeper unit and the inability of a person to retain a Personal Wheelchair in the sleeper unit do not constitute undue obstacles to the mobility of persons using Personal Wheelchairs. The Agency has further determined that by addressing these undue obstacles and, in view of the fact that a washroom that is accessible to persons using Personal Wheelchairs will now be located in the economy coach cars adjacent to the "accessible suite" in the service cars, the sleeper unit in the "accessible suite" will provide an acceptable alternative to the sleeping accommodation provided to other passengers in the sleeper cars.

However, in making the foregoing determination, the Agency recognizes that, while some persons with disabilities, including those who use smaller wheelchairs, will be able to independently access the washroom facilities in the "accessible suite" and that there may be others who may choose to access these facilities with the assistance of VIA staff and an onboard wheelchair, it is essential that there be a wheelchair-accessible washroom in the adjacent economy coach car for those persons who use wheelchairs who either cannot access the washroom facilities in the "accessible suite" or who prefer independent access. In this way, as discussed in the "Route between the tie-down and the 'accessible suite'" and the "Train consists" sections, the Agency is of the opinion that the cars in the overnight train consists should be marshalled in such a way that permits this access between the "accessible suite" in the service car and the wheelchair-accessible washroom in the economy coach car and that the obstacles along the route between these two accessible features must be remedied.

While the Agency recognizes that the foregoing level of accessibility that will be provided in the "accessible suite" to persons with disabilities requiring sleeping accommodations is not ideal, the Agency is of the opinion that it represents a reasonable balancing of the interests of persons with disabilities and the interests of VIA. It provides independent access to a washroom and, while that access may not be as easy for some who need to travel to the adjacent car in order to use the wheelchair-accessible washroom in the economy coach car, with the implementation of the corrective measures required in the economy coach cars, the route will be accessible.

4. WHEELCHAIR TIE-DOWN IN THE ECONOMY COACH CARS

In summary, the Agency is of the opinion that with the remedying of the undue obstacles posed by the inadequate width of the door into the sleeper unit and the inability of a person using a Personal Wheelchair to retain a wheelchair in the sleeper unit in the "accessible suite", the sleeper unit in the "accessible suite" will, when considered in conjunction with the wheelchair-accessible washroom that will be provided in the adjacent economy coach car and the modifications to the route between the "accessible suite" and the tie-down, provide an acceptable alternative to sleeping accommodations in the sleeper car on the Renaissance trains.

The Agency, therefore, finds that the lack of a sleeping compartment in the Renaissance sleeper car, including an accessible washroom for persons who use Personal Wheelchairs, does not constitute an undue obstacle to the mobility of persons who use Personal Wheelchairs based on the fact that the undue obstacles regarding the sleeper unit, the economy coach car washrooms, and the route will be remedied.

As reflected in the March Decision at page 81, the Agency recognizes the importance of a person's own wheelchair to a person and is of the opinion that it is of fundamental importance to the accessibility of rail travel that persons who use wheelchairs have the Option of remaining in their wheelchairs by availing themselves of a wheelchair tie-down, which is defined in the Rail Code as a space to accommodate an occupied Personal Wheelchair and a service animal.

The importance of the foregoing is reflected in the Rail Code, which provides that, for each passenger train, there be at least one wheelchair tie-down that has easy access to at least one wheelchair-accessible washroom.

In the March Decision, with respect to the tie-downs in the economy coach cars, the Agency found that the following constituted obstacles to the mobility of persons who use Personal Wheelchairs:

- the inadequate clear floor space to accommodate a person in a stationary Personal Wheelchair, including a person who is accompanied by a service animal; [p. 82]

- the inadequate manoeuvring space in the wheelchair tie-down area, including the lack of a 150-cm [59.06"] turning diameter; and [p. 86] ,

- the lack of seating either beside or facing the wheelchair tie-down for an attendant.

In recognition of the above, the Agency is of the opinion that the following are, at a minimum, fundamental requirements for wheelchair tie-downs:

(i) sufficient clear floor space to accommodate a person in a stationary Personal Wheelchair, including a person who is accompanied by a service animal;

(ii) sufficient space in the wheelchair tie-down area, including the area that is adjacent to it, to permit a person using a Personal Wheelchair to easily manoeuver into and out of the wheelchair tie-down; and,

(iii) space for an attendant to be seated facing or beside the person occupying the tie-down in order that the attendant may meet the needs of the person in a safe, dignified and discrete manner.

As previously noted, VIA intends to implement Option 1 in order to address the safety concerns regarding the location of the washrooms in the economy coach cars vis-a-vis the CEM Zone. Although the information and diagrams submitted by VIA do not refer to or depict the tie-down envisaged by Option 1, in view of VIA's statement in its June 2, 2003 submission that "the benefit and only relevance to the accessibility issue are that the passageway to the accessible washroom will be wider", it appears that there are no intended changes to the existing tie-downs in the economy coach cars. Additionally, the description of Option 1 contained in the chart and the diagrams of the various options that formed part of VIA's June 2 submission make no reference to the tie-down. Accordingly, the Agency's examination of the undueness of the above-noted obstacles are set out in the context of the design of the tie-down that was the subject of the Agency's March Decision.

In its May 26, 2003 submission, in response to the Agency's first direction to show cause, VIA submitted that in order to increase the area that is now dedicated for a tie-down to accommodate a Personal Wheelchair, a service animal, and more manoeuvring space and seating for an attendant, a double seat chair will need to be removed and components of many of the sub-systems in the area would need to be modified. More specifically, VIA added that the flooring and covering, air ducts, lighting, wall panels, overhead luggage bins, ceiling panels, seats and signage would require modification. Finally, VIA submitted that a design would be required for a new table and attendant seat.

CCD submitted that VIA's position regarding the adequacy of the clear floor space of the existing tie-down to accommodate a Personal Wheelchair and a service animal has not changed since before the March Decision; namely, that VIA continues to maintain that it would be too expensive to remove two seats to make a proper tie-down.

CCD noted that VIA has not submitted a coach car floor plan for its proposed Option 1, such that it is not clear whether it proposes moving the tie-down space from its current location. CCD submitted that VIA has not addressed the fact that the tie-down is virtually unusable in its current configuration and asserted that in order for it to be made useable by a majority of persons who use wheelchairs, it would be necessary to remove the double seats in Row 16.

CCD commented that not only is the existing tie-down area too small, it is also an inefficient use of space as a double seat is removed to accommodate a tie-down or, in the case where the tie-down is not occupied, by a single removable seat. CCD submitted that it would be necessary to remove an additional double seat in order to make the existing tie-down accessible.

CCD asserted that the amount of manoeuvring space, including an adequate turning area, is addressed by Option 3 but not by Option 1. CCD explained that depending on the width and positioning of the doorway to the Option 3 accessible washroom, there can be both an adequate turning radius outside and inside the washroom, notwithstanding the fact that the Renaissance trains are narrower than other trains in service in North America.

In its submission of August, 21, 2003, VIA submitted that the amount of manoeuvring space under Option 1 was originally 127 cm [50"] but was increased to 150 cm [59.06"]. Additionally, in its submission of August, 21, 2003, VIA asserted that removable seats and the tie-down space are not "operationally workable". Finally, VIA asserts that CCD's discussion of the tie-down space as contained in its August 18, 2003 submission "is incorrect".

Analysis

As noted above, the Agency has found that the following obstacles exist in the tie-down in the economy coach cars: the inadequate clear floor space to accommodate a person in a stationary Personal Wheelchair, including a person who is accompanied by a service animal; the inadequate manoeuvring space in the wheelchair tie-down area, including the lack of a 150-cm [59.06"] turning diameter; and the lack of seating either beside or facing the wheelchair tie-down for an attendant.

Regarding the inadequate clear floor space to accommodate a person in a Personal Wheelchair and a service animal, the Agency notes that VIA implied, by its May 26, 2003 submission that in order to address this obstacle, it is possible to enlarge the tie-down area by removing a Row of double seats.

Regarding VIA's assertion that removable seats and the tie-down space are not "operationally workable", the Agency finds that VIA has not provided any supporting evidence to demonstrate that this is the case. In this regard, the Agency refers to the March Decision at page 93 wherein the Agency, in its examination of the structural and economic implications of remedying the obstacles presented by the tie-down, stated that, while the tie-down area could be expanded by permanently removing seats, the evidence on file indicates that there are no significant structural impediments to addressing the obstacles by installing removable or folding seats. In light of VIA's failure to provide any evidence to support its contention that removable seats are not "operationally workable", the Agency continues to be of the opinion that there are no structural impediments to enlarging the tie-down area in this way.

Regarding the inadequate manoeuvring space in the tie-down area, including the lack of a 150-cm [59.06"] turning diameter, although the Agency notes VIA's assertion that the amount of manoeuvring space was increased from 127 cm [50"] to 150 cm [59.06"], the Agency finds that not only has VIA not provided an explanation of how this was achieved, it did not provide any evidence to support its assertion. As such, the Agency continues to be of the opinion that there is a lack of a 150-cm [59.06"] turning diameter in the tie-down area.

Although VIA, by its May 26, 2003 submission, implied that seating for an attendant in the tie-down area is possible by removing a double seat chair and making various other modifications, it did not indicate how this would be achieved. This being said, it would appear that a seat for an attendant would not be a removable seat, given VIA's statement that removable seats and the tie-down space are not "operationally workable".

In light of the foregoing, the Agency finds that VIA has not demonstrated, to the satisfaction of the Agency, that it is not possible, from a structural perspective, to remedy the obstacles in the existing tie-down in the economy coach cars.

In its May 26, 2003 submission, in response to the Agency's first direction to show cause, VIA asserts that it is "...not economically reasonable to increase the area that is now dedicated for a wheelchair tie-down to accommodate a Personal Wheelchair and a service animal, more manoeuvring space and seating for an attendant."

Additionally, in its July 14, 2003 submission, VIA estimates the cost of modifying the existing tie-down by removing the double seats that are in front of it, installing an attendant seat and making various other modifications in order to make it accessible, to be $1.237 million for engineering work [$177,000 in engineering and mock-up costs and $22,550 for each of the 47 cars for materials and installation] and lost revenue in the amount of $24.2 million over the life of the cars as a result of removing the double seats.

CCD submits that VIA's submissions in respect of the obstacles of inadequate clear floor space in the wheelchair tie-down have basically not changed since before the March Decision. CCD submits that VIA's position is that it would be too expensive to remove two seats to make a proper tie-down "and that is the end of the matter".

Analysis

While the Agency notes VIA's submission that the estimated cost of modifying the existing tie-down by removing the double seats that are in front of it, installing an attendant seat and making various other modifications are $1.237 million for engineering work and $24.2 million in lost revenue over the life of the cars as a result of removing the double seats, the Agency finds that VIA has, in large part, since the issuance of the Agency's two directions to show cause, submitted the same information regarding the financial implications of remedying the obstacles presented by the tie-down in the economy coach cars as it did prior to the issuance of the March Decision. In this regard, the Agency notes that, in the March Decision, the Agency considered the same estimate of $24.2 million in foregone passenger seat revenue provided by VIA and determined that there would not be this loss in revenue if VIA expanded the tie-down area by installing removable seats in the double seat Row in front of the tie-down as opposed to removing these double seats altogether.

Additionally, as noted above, the Agency continues to be of the opinion that there are no structural impediments to enlarging the tie-down area by installing removable or folding seats in the double seat Row in front of the tie-down. The Agency, therefore, concludes that the tie-down in the economy coach cars could be enlarged to address the inadequate manoeuvring space in the tie-down area, including the lack of a 150-cm [59.06"] turning diameter, without a loss in passenger seat revenue.

Regarding the economic implications of providing a seat either beside or facing the tie-down in order to accommodate an attendant for a person occupying the tie-down, given that it is apparent that removable seats can be installed in the double seat Row in front of the tie-down, the Agency is also of the opinion that removable seats can be installed facing the tie-down, one of which could be used to accommodate an attendant for a person occupying the tie-down. As such, there would be no revenue lost in order to provide seating for an attendant.

In light of the foregoing, the Agency finds that VIA has not shown cause, to the satisfaction of the Agency why it is not possible, from an economic perspective, to remedy the obstacles in the existing tie-down in the economy coach cars.

(a) Structural implications of remedying the obstacles in the tie-down with Option 3

In summary, the Agency finds that VIA has not shown cause why it is not possible, from either a structural or economic standpoint, to remedy the obstacles in the existing wheelchair tie-down in the economy coach cars. As such, the Agency finds that these obstacles are undue obstacles to the mobility of persons using Personal Wheelchairs. Further, given the fundamental importance of a tie-down that is accessible to persons using Personal Wheelchairs, it is essential that there be such a tie-down in the economy coach cars. Finally, given that the Agency has already determined that there needs to be a washroom proximate to the tie-down in the economy coach cars that is accessible to persons using Personal Wheelchairs and that this will be achieved through the implementation of Option 3, with appropriate modifications, the Agency considers it appropriate to examine the lack of an accessible tie-down in the economy coach cars in the context of the structural and economic feasibility of implementing Option 3. Further, in this regard, the Agency notes that the implementation of Option 3 is inconsistent with the use of the existing wheelchair tie-down, given that the washroom envisaged by Option 3 is designed to use the space currently occupied by the tie-down, such that, although that tie-down, in its present location, is an undue obstacle to the mobility of persons using Personal Wheelchairs, the Agency must now consider the tie-down planned for under Option 3.

Option 3

CCD asserts that the amount of manoeuvring space in the tie-down, including an adequate turning area, is addressed by Option 3 but not by Option 1. CCD expresses the view that, depending on the width and positioning of the doorway to the wheelchair-accessible washroom that is intended under Option 3, there can be both an adequate turning radius outside and inside the washroom, notwithstanding the fact that the Renaissance trains are narrower than other trains in service in North America. However, in his August 14, 2003 report that accompanied CCD's August 18, 2003 submission, Ron Woollam states that under Option 3, it is assumed that either the tie-down or the "accessible suite" will be occupied but not both as the turning radius necessary to turn for entry into the washroom includes the space occupied by the tie-down such that, if the tie-down is occupied, a second person using a wheelchair cannot enter the washroom.

Regarding space for an attendant or a service animal, Mr. Woollam further comments that there is no apparent reason why VIA could not remove the single seat in Row 15, lower the platform to aisle level, and install a reversible seat to allow an attendant or second person accompanied by a service animal to sit facing a person with a disability seated in the tie-down position or in one of the removable seats behind. CCD notes that the technology for making a seat reversible is affordable and readily available.

CCD refers to Ron Woollam's report where he submits that when compared to the tie-down envisaged by Option 1, Option 3 provides VIA with an additional two seats when the tie-down is not in use. CCD explains that this is the result of the unused space created because of the inefficiency of the tie-down space required for Option 1 and the relocation of the storage space from the forward end of the car to the rear. CCD notes that this increases to an additional four spaces, assuming the tie-down space is expanded and made accessible without the use of removable seats, as is projected by VIA in its projection of foregone passenger seat revenue. CCD notes that in order to make the washroom in Option 3 accessible it would be necessary to have a clear floor length that would require the removal of the double seats in Row 16. CCD notes that this means that the implementation of Option 3 would result in the same number of seats as are currently available, while providing an accessible tie-down and while saving at least one seat. Finally, CCD submits that the only way VIA could save money by implementing Option 1 over its proposed modified Option 3 would be if it was not intending to make the tie-down space accessible.

CCD submits that there are areas at the front of the coach car that are currently used for storage and possibly used for a vending machine that are not inside the CEM Zone. CCD notes that VIA has not explained why these functions could not be moved into the CEM Zone at the rear of the train, thereby making the space at the front of the train available for additional seating. CCD points out that Ron Woollam has stated in his report that there is no known barrier that would prevent these spaces from being used for three additional seats on each coach car.

Finally, CCD requests that the Agency direct that VIA provide a tie-down situated behind the single seat in Row 15 with a minimum length of 200 cm [78.74"] of clear space.

In its submission dated July 14, 2003, VIA states that Option 3 has no structural implications for the Renaissance trains.

In response to CCD's submission that there are areas at the front of the coach car that are currently used for storage and possibly used for a vending machine, VIA states that it is incorrect to say this.

Finally, in response to CCD's assertions regarding how Option 3, with certain modifications, can meet all the fundamental requirements of an accessible tie-down, in its submission dated August 21, 2003, VIA states that CCD's discussion of the tie-down is "incorrect".

Analysis

While VIA did not submit dimensions for the tie-down envisaged by Option 3, a review of the diagram for Option 3 indicates that the clear floor space is adequate to accommodate a stationary Personal Wheelchair. In addition, it appears that a service animal could be accommodated in the space depicted in Row 16, immediately in front of the tie-down, where it appears that VIA will be removing a removable seat when the tie-down in Row 17 is occupied. As such, the Agency is of the opinion that Option 3 would afford a tie-down space that accommodates a stationary Personal Wheelchair and a service animal.

Regarding the space needed to allow a person using a Personal Wheelchair to easily manoeuver into and out of the tie-down, a review of the diagram for this Option indicates that the ability of a person to turn his/her wheelchair around may be impeded as a result of the limited space between the exterior wall on the single-seat of the car and the interior wall of the accessible washroom. In fact, it is not apparent to the Agency, even when the additional space provided by the doorway to the washroom is considered, that there would be sufficient space to allow a person using a Personal Wheelchair who occupies the tie-down or the sleeper unit in the "accessible suite" to manoeuver and turn his/her wheelchair around in this space in order to access the washroom. More specifically, it is not clear whether Option 3 would provide a 150-cm [59.06"] turning space for a person using a Personal Wheelchair.

In light of the foregoing, the Agency is of the opinion that it will likely be necessary to make modifications to Option 3 in order to ensure that there is sufficient space in the tie-down area to allow a person using a Personal Wheelchair to easily manoeuver into and out of the wheelchair tie-down and to access the washroom.

By way of example, the Agency is of the opinion that by removing all of the bulkhead wall and the "future valet/storage" that would be located directly behind the tie-down and by possibly moving the door to the accessible washroom closer to the wall that is aligned with the outer edge of the CEM Zone, wheel-in access to the tie-down, albeit possibly at a slight angle, would be feasible. As noted by CCD's mobility specialists and, as reflected in the March Decision, wheel-in access to a tie-down provides the greatest level of accessibility and is the most efficient means of entering a tie-down. The Agency also notes that, by removing this bulkhead wall and future valet/storage, it may be possible to situate the tie-down slightly further back in the car which, as discussed below, would provide additional space to install a removable or fold-down seat in Row 16. Finally, the Agency notes that it may be possible to relocate some or all of this "future valet/storage" that is removed to the space presently occupied by the decommissioned washroom at the vestibule-end of the economy coach car. In this regard, although the Agency, in its discussion that follows on the space in the economy coach cars for persons who travel with service animals, notes that sufficient seating accommodation at floor level for such persons may be created by removing the bulkhead wall and the vestibule washroom and by lowering the Row of double seats that face the bulkhead wall, the Agency notes that there may be sufficient space in this area to also allow for the relocation of some or all of the "future valet/storage".

While the Agency recognizes that the foregoing modifications reflect an ideal level of access to the tie-down in the sense that wheel-in access could be achieved, the Agency also recognizes that it may be possible to provide an adequate level of access to the tie-down by removing some of the "future valet/storage" that is located behind the tie-down.

Although the Agency is of the opinion that the foregoing modifications to Option 3 would enhance the ability of a person using a Personal Wheelchair to turn and manoeuver his/her wheelchair in order to access the washroom, given that VIA did not provide any dimensions with respect to Option 3, it is difficult to assess whether, even with these modifications, there would be a 150-cm [59.06"] turning diameter in the tie-down area. Notwithstanding, the Agency is of the opinion that Option 3 with the foregoing modifications, or any such similar modifications, would provide sufficient clear floor space to allow a person using a Personal Wheelchair to turn and manoeuver his/her wheelchair in order to access the accessible washroom or the tie-down.

Regarding the space needed for an attendant to be seated facing or beside the person occupying the tie-down, the Agency notes VIA's assertion in its August 21, 2003 submission that "removable seats and the tie-down space are not operationally workable". However, VIA provides no supporting evidence as to why this is not "operationally workable" and the Agency has no evidence on file to suggest that this is so. In fact, the Agency refers VIA to the March Decision at pages 92 and 126, where it is noted that a removable seat has been installed over the tie-down mechanism in the last Row of double seats in both the VIA-1 and the economy coach cars. Accordingly, the Agency is of the opinion that it is feasible to install a removable seat in front of the tie-down to accommodate an attendant.

Similarly, the Agency is of the opinion that it is feasible to install a removable seat in front of the tie-down in order to provide space for a service animal. In this regard, the Agency is of the opinion that the tie-down area needs to provide additional space for both an attendant and a service animal. This is consistent with the Agency's determinations set out in the March Decision that, in order to be accessible, a tie-down area needs to accommodate a person using a Personal Wheelchair and a service animal, in addition to providing seating for an attendant either facing or sitting beside the person occupying the tie-down. The Agency notes Mr. Woollam's submission that there is no technical reason why the seat in Row 15 could not be removed, the underlying platform lowered to aisle level, and a reversible seat installed to allow an attendant to sit facing a person who occupies the tie-down.

In light of the foregoing, the Agency is of the opinion that it is feasible to install a removable seat in Row 15 which also faces the wheelchair tie-down in order to accommodate an attendant and a removable seat in Row 16 to provide space for a service animal. The Agency notes that when the tie-down is not in use, the removable seat in Row 16 could be available to a passenger or attendant who wished to face another passenger, possibly a person with a disability who prefers to occupy a seat at aisle level, who would occupy the removable seat that is installed over the tie-down. Alternatively, when the tie-down is in use, this seat could be used by an attendant or not used at all in order to provide space for a service animal.

The Agency agrees with the foregoing opinion expressed by Mr. Woollam and, as such, is of the opinion that Option 3, with the modifications described above to provide seating for an attendant and space for a service animal in Rows 15 and 16 in front of the tie-down, would ensure that the tie-down space accommodates a person using a Personal Wheelchair, a service animal and an attendant.

The Agency notes that although it may be necessary to move the tie-down further back in the car in order to ensure that there is sufficient space to accommodate both an attendant facing a person occupying the tie-down and a service animal, as noted above, the Agency is of the opinion that this could be accomplished by removing the bulkhead wall and the future valet/storage that is located behind the tie-down. The Agency further notes that by moving the tie-down further back in the car and thereby creating additional space between the tie-down and the seat in Row 16, it may be possible to provide sufficient space at Row 16 in order that an attendant can occupy a seat facing the wheelchair tie-down at this location when the tie-down is occupied by a person travelling with a service animal. In this way, it may not be necessary to install a seat facing the wheelchair tie-down in Row 15 in order to accommodate an attendant when a person occupying the tie-down is travelling with a service animal.

Regarding Mr. Woollam's view that if the tie-down is occupied, a second person using a wheelchair cannot enter the washroom, while the Agency acknowledges that it may be necessary for a person occupying the tie-down to move forward and out of it in order to allow another person using a wheelchair to access the accessible washroom, the Agency is of the opinion that this situation, although not ideal, would not significantly detract from the accessibility of either the tie-down or the "accessible washroom". In this regard, the Agency refers to the "Train consists" section that follows where it concludes that a person using a Personal Wheelchair should be able to use the "accessible suite" for sleeping accommodations on both the Montréal-Toronto and the Montréal-Halifax overnight consists, regardless of whether the tie-down is already occupied.

In summary, as previously discussed in the "Washrooms in the economy coach cars" section, it is apparent that it is structurally feasible to implement Option 3. The Agency also finds that there is no evidence on file to indicate that it would not also be structurally feasible to: remove the bulkhead wall and future valet/storage that are located behind the tie-down in order to enhance the accessibility of the tie-down and to provide additional space to allow persons using Personal Wheelchairs to manoeuver and turn their wheelchair in order to access the accessible washroom; to install removable seats in Row 16 and Row 15 facing the tie-down in order to permit an attendant to sit facing a person occupying the tie-down; and to accommodate a service animal that accompanies a person occupying the tie-down.

Based on the foregoing, the Agency is of the opinion that it is structurally feasible to implement Option 3, with appropriate modifications, in order to ensure that the tie-down in the economy coach car would meet the aforementioned three fundamental accessibility requirements.

(b) Economic implications of remedying the obstacles in the tie-down with Option 3

The Agency notes that, as discussed in the "Washrooms in the economy coach cars - Economic factors" section, the Agency has already determined that VIA has not demonstrated that it cannot afford the capital costs which it would incur to implement Option 3 and that, therefore, the implementation of Option 3 is feasible from this perspective. Given that Option 3 also provides for a tie-down, the Agency's consideration of the financial implications of remedying the obstacles in the tie-down by implementing Option 3 is based on a consideration of the potential loss in passenger seat revenue which would result, given that it has already considered the capital cost of implementing Option 3.

In this regard, VIA asserted that it will lose $24.2 million in revenue over the 20-year life of the cars if it implements Option 3. Furthermore, VIA submitted that the loss of revenue during the reconstruction phase, if any were to be ordered, cannot now be calculated because it depends upon the length of time that the car is out of service. VIA submitted that, in any event, this loss would be in addition to the $24.2 million.

The sketch included under Tab 8 in VIA's submission of July 14, 2003 of an economy coach car that has been modified to implement Option 3 and the notes on the covering page to the sketch disclose a loss of between one and two passenger revenue seats (one if the tie-down is not occupied and two if it is). While not clearly stated by VIA, it appears that VIA's estimate of foregone passenger seat revenue reflects a loss of passenger seat revenue attributable to two seats when the tie-down is occupied based on: firstly, the permanent loss of one revenue seat as a result of locating the accessible washroom in Row 17 on the double seat side where there would currently be generated passenger seat revenue from a person occupying the tie-down or the removable seat that can be installed at this location; and, secondly, the loss of revenue from the removal of the seat in Row 16 in order to accommodate a person using a wheelchair. When the tie-down is not occupied, a removable seat would be installed in Row 16, thereby reducing the loss of passenger revenue to one seat.

As reflected under Tab 2 of VIA's July 14, 2003 submission, the following annual loss of passenger seat revenue on a per car basis would be incurred in situations where there is a loss of two passenger seats, such as would occur when the tie-down is occupied and an attendant does not occupy a seat facing the tie-down:

	$'s/year

[(2 seats * 1 trip * .15) + (2 seats * 1 trip * .60)] * $55 * 312 trips/year	$ 25,740

The Agency notes that the above estimate of foregone passenger seat revenue is based on the following assumptions, as reflected in VIA's July 14, 2003 submission: each economy coach car will make 2 trips per day on average, 6 days per week or 312 day trips per year; morning trips will be sold out 15 percent of the time; afternoon trips will be sold out 60 percent of the time; and the estimated average fare is $55.

The Agency acknowledges that when the tie-down under Option 3 is occupied and where the space in Row 16 in front of the tie-down is not being used by an attendant, there would be a loss of revenue associated with the space in Row 16, such that, including the foregone revenue associated with the accessible washroom, there would be a loss of revenue in respect of two seats if Option 3 were implemented.

However, the Agency notes that the assumptions used by VIA to calculate the above-noted lost revenues are based on capacity levels which reflect that a passenger would be turned away 15 percent of the time with respect to morning day trips and 60 percent of the time with respect to afternoon trips because all of the seats and the tie-down in the economy coach cars would already be sold. However, the Agency notes that this does not reflect the percentage of time that a person who uses a wheelchair actually travels on VIA's passenger trains. In this regard, the Agency refers to VIA's assertions regarding the actual number of passengers with disabilities who travel on its trains and its submission, as reflected in the March Decision at page 37 that, in 2000, less than 0.1 percent of its passengers were persons with disabilities. As such, assuming that the number of passengers with disabilities who travel on VIA's trains has remained stable since 2000 and, assuming that the 0.1 percent largely pertains to persons who use wheelchairs, the annual foregone passenger seat revenue for a loss of two seats for each of the 33 economy coach cars would be $849.42 [($25,740 x .1%) x 33 economy coach cars]. Over the 20-year life of these cars, this would amount to $16,988.40 in foregone passenger seat revenue.

Additionally, the Agency notes that VIA's estimate of lost revenues does not take into consideration the percentage of time that a person, who is turned away because all of the seats and the tie-down in the economy coach cars are already sold, either takes a later train or is possibly accommodated in a VIA-1 coach car on the same train. The Agency is of the opinion, therefore, that a more accurate estimate of lost passenger seat revenue over the 20-year life of the economy coach cars would be even lower than the $16,988.40 noted above. Finally, the Agency notes that, after factoring in the time-value of money and discounting the loss of passenger seat revenue over the 20-year life of the cars, the passenger seat revenue that would be foregone as a result of implementing Option 3 would be relatively insignificant.

Although the Agency noted in the March Decision at page 40 that the number or percentage of passengers with disabilities who actually travel on VIA's passenger rail cars is not a factor that is determinative in the matter at hand, given that Part V of the CTA, by its very nature, is human rights legislation, the Agency is, however, of the opinion that this factor is important in an economic context for the purposes of illustrating that the actual foregone passenger seat revenue as a result of implementing Option 3 will be substantially lower than is represented by VIA in its July 14, 2003 submission.

With respect to the submission by CCD that there are areas at the front of the coach car that are currently used for storage and possibly used for a vending machine and VIA's submission that this is incorrect, the Agency notes that, in its submission of September 18, 2003, VIA advised that 32 coaches out of 47 have had one seat removed to install a coat valet. VIA submitted that the change was necessary in order to "accommodate passengers wearing coats" and that there is no other facility appropriate for the storage of coats. VIA estimated that two of the 32 cars were completed prior to March and the remainder of these have since been completed. VIA noted that there are fifteen cars that will be completed once they are delivered from Thunder Bay, which will occur between mid-November 2003 and year end.

The Agency recognizes that there needs to be storage space on coach cars for passengers' personal belongings; however, VIA has not indicated why the existing storage or even some of the "future valet/storage" is not sufficient for this purpose. In view of the fundamental importance to the accessibility of rail travel of a tie-down that is accessible to persons using Personal Wheelchairs, the Agency is of the opinion that, if VIA is prepared to remove up to 47 seats to accommodate passengers' coats and forego the revenues associated with this, it must be prepared to forego the revenues associated with removing up to 33 seats (or 13 seats in the "best case scenario" as previously discussed in the "Washrooms in the economy coach cars" section) in order to implement Option 3, thereby addressing these important issues as they relate to the accessibility of the wheelchair tie-down in the economy coach cars.

In summary, it is apparent that the estimate submitted by VIA for the loss in passenger seat revenue that would result from the implementation of Option 3 is overstated. Moreover, as discussed above in the "Washrooms in the economy coach cars" section, the Agency finds that VIA has not presented any specific arguments why it could not financially afford the costs of implementing Option 3, including the loss in passenger seat revenue. On the contrary, it would appear that VIA can afford to lose the revenue associated with one passenger seat for the above-noted 13 or 33 economy coach cars, given that it is prepared to forego the revenue in respect of up to 47 coach car seats to provide coat storage.

Based on the foregoing, the Agency concludes that it is economically feasible for VIA to implement Option 3, with appropriate modifications, to provide a wheelchair tie-down area in the economy coach cars that is accessible to persons using Personal Wheelchairs.

5. ROUTE BETWEEN THE WHEELCHAIR TIE-DOWN IN THE ECONOMY COACH CARS AND THE "ACCESSIBLE SUITE" IN THE SERVICE CARS

In summary, the Agency has examined the accessibility of the existing tie-down area and found that it constitutes an undue obstacle to the mobility of persons who use Personal Wheelchairs. Further, as noted above, the Agency found it appropriate to examine the lack of a wheelchair-accessible tie-down in the economy coach cars in the context of the structural and economic feasibility of implementing Option 3, given that this is the remedy that the Agency has determined will address the undue obstacle posed by the lack of a washroom in the economy coach cars that is accessible to persons using Personal Wheelchairs, and given that the implementation of Option 3 is inconsistent with the use of the existing tie-down. In this regard, the Agency is of the opinion that it is economically and structurally possible to implement Option 3 and that, with appropriate modifications as discussed above, Option 3 will provide a tie-down that is accessible to passengers who use Personal Wheelchairs.

Background

As reflected in the March Decision at page 95, where there are features, such as those contained in wheelchair tie-downs, that are specifically designed to meet the needs of persons with disabilities who wish to remain in their own wheelchair, the Agency is of the opinion that it is essential that such persons be capable of accessing these features in their own wheelchair. The Agency noted that, in this regard, doorways need to provide sufficient space to allow persons using their own wheelchairs to manoeuver safely and easily through them. The Agency further noted that the foregoing is in keeping with the Rail Code, which provides that doorways to areas that are to be wheelchair accessible should be wide enough to allow a person in a Personal Wheelchair to access those areas.

Similarly, the Agency expressed the opinion that aisles that accommodate onboard wheelchairs but do not accommodate a person's own wheelchair could prevent some persons with disabilities from accessing areas on trains as not all persons with disabilities who use wheelchairs are willing or able to use an onboard wheelchair.

Further, the Agency concluded that the bulkhead door opening leading to the wheelchair tie-down in the economy coach cars needs to be accessible to persons using Personal Wheelchairs and, specifically, that it needs to be at least 81 cm [31.89"] in width, which is the minimum width for a doorway specified by the CSA Barrier-Free Design Standard. The Agency further concluded that, given the foregoing, it is reasonable that the width of the aisle that is between the two washrooms, at one end of which is the bulkhead door, also be at least 81 cm [31.89"].

The Agency concluded that because the width of the bulkhead door opening and the aisle between the two washrooms in the economy coach cars are less than 81 cm [31.89"], this constitutes obstacles to the mobility of persons who use Personal Wheelchairs.

As previously noted, VIA intends to implement Option 1 in order to address the safety concerns raised by Transport Canada regarding the location of the washrooms vis-a-vis the CEM Zone. As such, consistent with its examination of the economy coach car washrooms and the tie-down, the Agency will analyze the accessibility of the route between the tie-down in the economy coach cars and the "accessible suite" in the adjacent service cars in terms of the plans for Option 1.

Option 1

Obstacle analysis

Option 1, as it pertains to the route between the tie-down and the "accessible suite" in the adjacent service car, provides for the installation of "future valet/storage" on both sides of the economy coach car, at the tie-down end of the car behind the bulkhead walls.

While VIA states that the "passageway to the accessible washroom will be wider" under Option 1, it is not clear what will be the width of the bulkhead door opening or the aisle. The Agency notes, however, that it appears, from the sketch provided by VIA for the Option 3 design which also provides for "future valet/storage" in the same area as planned for under Option 1, that the bulkhead door opening will not be widened from the 74 cm [29.13"], which was the width noted in the March Decision.

Although it was clear in the March Decision that the Agency was of the opinion that the bulkhead door opening and the aisle needed to be widened to at least 81 cm [31.89"] in order to ensure that persons using Personal Wheelchairs could manoeuver safely and easily through them, the Agency finds that VIA has provided no evidence in any of its submissions to indicate that this would be the case under Option 1.

Based on the foregoing, the Agency finds that the route between the tie-down in the economy coach car and the "accessible suite" in the service car, as planned for under Option 1, and more specifically, the inadequate width of the bulkhead door opening located behind the tie-down and the inadequate width of the aisle between the "future valet/storage" constitute obstacles to the mobility of persons using Personal Wheelchairs.

Undueness analysis

The Agency is of the opinion that the route between the tie-down in the economy coach car and the "accessible suite" in the adjacent service car needs to be wide enough to allow a person using a Personal Wheelchair to move safely and easily through it.

It is apparent that in order to address the obstacles along the route between the tie-down and the "accessible suite", the bulkhead door opening would need to be increased to at least 81 cm [31.89"] by reducing or removing the bulkhead walls and the aisle in the economy coach car leading to the "accessible suite" in the adjacent service car would need to be widened to at least 81 cm [31.89"] by either removing the "future valet/storage" on both sides of the car or by narrowing this storage space on one or both sides of the car.

While the diagram for Option 1 submitted by VIA does not depict the route between the tie-down and the "accessible suite", it is apparent from the information submitted by VIA that the plan provides for "future valet/storage" on both sides of the car at the tie-down end of the car behind the bulkhead walls. Furthermore, it would appear from the chart included with VIA's July 14, 2003 submission that the primary difference between the route under Option 1 and the route under Option 3 relates to the amount of baggage space; Option 1 providing 144 cubic feet of space and Option 3 providing 98 cubic feet of space. The Agency is of the opinion, therefore, that the route planned for under Option 1 would not be significantly different from a structural standpoint than the route planned for under Option 3.

In this regard, the Agency notes that, as previously discussed in the "Wheelchair tie-down in the economy coach cars" section, the Agency has concluded that it is structurally feasible to implement Option 3 and that there is no evidence on file to indicate that it would not also be structurally feasible to remove the bulkhead wall and future valet/storage that would be located behind the tie-down, in order to enhance the accessibility of the tie-down and to provide additional space to allow persons using Personal Wheelchairs to manoeuver and turn their wheelchair in order to access the accessible washroom.

In light of the foregoing and given that, as noted above, the plans for Option 1 and Option 3 appear to differ only in terms of the amount of "future valet/storage", the Agency is of the opinion that there are no structural impediments to widening the bulkhead door opening and the aisle between the "future valet/storage" on both sides of the car to at least 81 cm [31.89"].

In terms of the economic implications of addressing the obstacles along the route between the tie-down and the "accessible suite", given the fact that the modifications that would be required to widen the bulkhead door opening and the aisle to at least 81 cm [31.89"] would not affect the structure of the body of the economy coach cars or the CEM Zone, the Agency is of the opinion that the modifications could be made at a much more reasonable cost than that which would be incurred if the modifications did affect the CEM Zone or the car body. The Agency notes that this reasoning is consistent with that set out in the March Decision at page 100. The Agency further notes that VIA did not, in its responses to the Agency's directions to show cause, dispute the Agency's finding as set out in the March Decision.

In light of the above, the Agency finds that the route between the tie-down in the economy coach car and the "accessible suite" in the adjacent service car, as proposed under Option 1, constitutes an undue obstacle to the mobility of persons using Personal Wheelchairs.

Furthermore, given that the Agency has determined that, in view of the fact that Option 1 will not provide a washroom and a tie-down in the economy coach cars that are accessible to persons using Personal Wheelchairs, the Agency has examined the undueness of these obstacles in the context of Option 3, which provides for a wheelchair-accessible washroom proximate to a wheelchair-accessible tie down in the economy coach cars. In this regard, the Agency has ordered VIA to implement Option 3 with whatever modifications are necessary in order to ensure that these obstacles are remedied. Accordingly, the Agency will also examine the undueness of the obstacles along the route between the tie-down and the "accessible suite" in the context of Option 3.

Option 3

(a) Structural factors

CCD noted that the diagram of Option 3 indicates that the area depicted between the washroom and the future valet/storage is 78 cm [80.71"] wide. CCD submitted that the width of this area affects both moving through the passageway and entering and exiting the tie-down space. CCD further submitted that by making a bevel to the future storage/valet area or by narrowing it, access for both of these purposes would be achieved. Finally, CCD submits that there are no structural reasons why a minimum width of 81 cm [31.89"] could not be provided.

In response to the foregoing, VIA asserted that bevelling will not allow a wider space in the storage area.

As noted above, and as previously discussed in the "Wheelchair tie-down in the economy coach cars" section, the Agency has concluded that it is structurally feasible to implement Option 3 and that there is no evidence on file to indicate that it would not also be structurally feasible to remove the bulkhead wall and "future valet/storage" that would be located behind the tie-down under this option, in order to enhance the accessibility of the tie-down and to provide additional space to allow persons using Personal Wheelchairs to manoeuver and turn their wheelchair in order to access the accessible washroom.

While the Agency recognizes that in order to widen the bulkhead door opening and the aisle between the "future valet/storage" to at least 81 cm [31.89"] it would not be necessary to totally remove the bulkhead walls or the storage space that are behind the tie-down, the Agency notes that when implementing the corrective measures set out in this Decision, it is VIA's responsibility to ensure that modifications made to address a certain undue obstacle do not conflict with the modifications necessary to address another undue obstacle. In this regard, in the case of the undue obstacles regarding the tie-down and the route between it and the "accessible suite", it is apparent that there are benefits, from a structural perspective, to removing all of the bulkhead wall and all of the "future valet/storage" that are behind the tie-down, given that this modification will address the obstacles regarding both the tie-down and the route between it and the "accessible suite".

Based on the foregoing, the Agency is of the opinion that, from a structural standpoint, it is possible to implement Option 3, with appropriate modifications, to ensure that the route and, specifically, the bulkhead door opening and the aisle between the tie-down in the economy coach car and the "accessible suite" in the adjacent service car, are at least 81 cm [31.89"] in width in order to ensure that the route is accessible to persons using Personal Wheelchairs.

(b) Economic factors

In terms of the economic implications of addressing the obstacles along the route between the tie-down and the "accessible suite", as noted above in its discussion on Option 1, the Agency is of the opinion that the modifications necessary to address the obstacles could be made at a reasonable cost given the fact that the modifications that would be required in order to widen the bulkhead door opening and the aisle to at least 81 cm [31.89"] would not affect the structure of the body of the economy coach cars or the CEM Zone. In this regard, as noted in the preceding discussion on the economic implications of addressing the obstacles along the route that would exist if Option 1 were implemented, the Agency is of the opinion that the modifications could be made at a much more reasonable cost than that which would be incurred if the modifications did affect the CEM Zone or the car body.

As the Agency is of the opinion that the costs associated with widening the bulkhead door opening and the aisle to at least 81 cm [31.89"] would, as noted above, be reasonable, the Agency is also of the opinion that the costs associated with removing the bulkhead wall and "future valet/storage" that are behind the tie-down would be reasonable given that such modifications would also not affect the structure of the body of the economy coach cars or the CEM Zone. Furthermore, the Agency notes that these modifications would not only enhance the accessibility of the tie-down and provide additional space to allow persons using Personal Wheelchairs to manoeuver and turn their wheelchair in order to access the "accessible washroom" but also ensure that the route between the tie-down and the "accessible suite" is accessible to persons using Personal Wheelchairs. Finally, the Agency notes that there are obvious economic benefits to concurrently addressing the undue obstacles regarding the route between the tie-down and the "accessible suite" and the undue obstacles regarding the tie-down.

Based on the foregoing, the Agency is of the opinion that it is possible, from an economic standpoint, to implement Option 3, with appropriate modifications, to ensure that the route and, specifically, the width of the bulkhead door opening and the aisle between the tie-down in the economy coach car and the "accessible suite" in the adjacent service car, are accessible to persons using Personal Wheelchairs.

6. MOVABLE AISLE ARMRESTS IN THE COACH CARS

In summary, the Agency has concluded that the route between the tie-down and the "accessible suite" in the adjacent service car, as planned for under Option 1, and, specifically, the width of the bulkhead door opening and the aisle between the "future valet/storage", constitute undue obstacles to the mobility of persons using Personal Wheelchairs.

In view of the Agency's decision to examine the accessibility of the washrooms and the tie-down in the economy coach cars in the context of Option 3, the Agency determined that it would also examine the undueness of the obstacles along the route between the tie-down and the "accessible suite" in the context of Option 3.

In this regard, as discussed above, the Agency has determined that the undue obstacles regarding the route between the tie-down and the "accessible suite", being the width of the bulkhead wall and the aisle between the "future valet/storage", can be remedied through the implementation of Option 3, with appropriate modifications, to ensure that this route is accessible to persons using Personal Wheelchairs.

As set out by the Agency in the March Decision, ideally, transfers between a person's wheelchair or an onboard wheelchair and a passenger seat take place by lateral movements between surfaces that are of the same level with no obstruction between the two surfaces. In this way, movable aisle armrests are an important component in facilitating such transfers as a raised aisle armrest reduces the height over which a person who uses a wheelchair must be lifted. Furthermore, movable aisle armrests permit easier access by other persons with disabilities who require more manoeuvring space to reach their seats.

The Agency, in the March Decision, highlighted the importance of movable aisle armrests in the Renaissance coach cars, given the particular design feature of these cars; that being seats raised on a platform 25 cm [9.84"] above floor level, which make transfers that much more difficult, even where movable aisle armrests are provided. Where no movable aisle armrests are provided on raised seats, the Agency recognizes that there will be significant barriers to access for some persons with disabilities by adding another significant distance over which they would need to be lifted.

With respect to the number of seats with movable aisle armrests, the Agency noted in the March Decision that although VIA meets the Rail Code standard that 10 percent of aisle armrests be movable, this standard was based on older passenger rail equipment, including that of VIA, which has seats mounted at floor level. There was no expectation at the time the Rail Code was developed that rail equipment would provide for raised seating. The Agency recognized that more people will be affected by the presence of fixed aisle armrests in the Renaissance coach cars, particularly in view of the fact that a person with a disability who may not have otherwise required a movable aisle armrest, may now require one to facilitate accessing the seats due to the raised platform.

With respect to the location of movable armrests, the Agency indicated in the March Decision that the movable aisle armrests should be evenly distributed throughout the rail car, as set out in the Rail Code, in order to provide a selection of seating to meet the different needs of persons with disabilities. This, however, is not the case in the Renaissance Cars as the movable aisle armrests are all located at single seats; three are on the single seat side of the car, while the fourth is on the single removable seat at the tie-down location. Furthermore, while the Rail Code only provides for movable aisles armrests in the coach car where the wheelchair tie-down is located, the Agency noted that VIA had installed movable aisle armrests in all coach cars. As set out in the March Decision, the Agency is of the opinion that this is an appropriate area for VIA to exceed the standards found in the Rail Code as the design of the seats in all of the coach cars makes accessing the seats that much more difficult.

The Agency indicated in the March Decision that there are no seats in the Renaissance coach cars that will meet the multiple needs of some persons with disabilities who require both a movable aisle armrest to facilitate transfers to and from a seat, as well as an adjacent seat to accommodate their disability either for themselves or for an attendant to provide assistance of a personal nature. The choices for such persons are to either place themselves at greater physical risk by being lifted and transferred to an elevated seat over a fixed armrest in order to sit on the double-seat side of the car to use the second seat either for themselves or their attendant or, in the case of persons travelling with an attendant, to occupy a seat with a moveable armrest on the single-seat side of the car and have their attendant provide assistance by standing in the aisle of the coach car, which has a negative impact on the dignity and privacy of the person with a disability and poses a risk to the safety of both the person with a disability and the attendant.

In the March Decision, the Agency determined that the lack of movable aisle armrests on the double-seat side of the Renaissance coach cars constitutes an obstacle to the mobility of persons with disabilities.

In the March Decision, the Agency accepted VIA's submission that it is feasible to install movable aisle armrests on the double-seat side of the car by re-engineering the armrest to accommodate the seat function mechanisms. In light of the fact that movable aisle armrests are already installed on the single-seat side of the coach cars, the Agency indicated in the March Decision that it would appear that the most practical and reasonable solution to remedy this obstacle would be the installation of movable aisle armrests on some double seats. Specifically, the Agency determined that VIA should provide at least two movable aisle armrests on the double-seat side in the Renaissance coach cars.

In response to the show-cause order, VIA reiterated that it is possible to include movable aisle armrests on the double-seat side of the cars, but submitted that the design will have to ensure that the structural integrity of the seat is not compromised. VIA further submitted that the relocation and redesign of the recline lever and mechanism will need to provide proper ergonomics, acceptable component life cycles and ease of maintenance.

CCD stated that it remains concerned about the impact of the raised seating in the Renaissance coach cars on persons with limited mobility, those transferring from wheelchairs and persons who travel with service animals. CCD notes that the only seating at aisle level will be in removable single seats. Finally, CCD submitted that persons with disabilities should not be restricted to single seats as some will require access to double seating because of the nature of their disability.

Based on the foregoing, the Agency is of the opinion that VIA has not filed any evidence that refutes the Agency's conclusion, as set out in the March Decision, that it is possible, from a structural standpoint, to install movable aisle armrests on the double-seat side in the Renaissance coach cars. In conclusion, therefore, the Agency is of the opinion that VIA has not shown cause, from a structural perspective, why movable aisle armrests can not be installed on the double-seat side in the Renaissance coach cars.

VIA estimated the total cost of the modifications required to install two movable aisle armrests on double seats to be $133,125 in direct costs for the fleet of 47 coach cars, plus the cost of servicing the mechanism over time. VIA provided the following breakdown of its internal costs estimate:

- $45,000 for non-recoverable costs, which include costs for engineering, mock-ups and testing;
- $24,675 for production costs per car, which include 2 new armrests, 2 new side structures, 2 cables and levers and new hardware; and,
- $1,350 for installation costs per car, which includes the removal of side arms and the installation of new cables and new armrests ($63,450 total installation for the 47 coach cars).

VIA submitted that if any changes were ordered by the Agency, VIA would be required to remove entire train sets from service. The loss of revenue would depend upon the changes themselves, estimates of construction and transportation time. VIA added that the operational implications of removing train sets from service are extremely serious as VIA does not have rolling stock in excess of its needs.

With respect to VIA's estimated cost, CCD submitted that in light of the aging population and the additional revenues that would presumably be generated because of VIA's improved level of service to a large and growing group of potential rail travellers, the obstacle posed by the armrests is undue.

The Agency refers to the March Decision at page 146 where the Agency expressed the opinion that the operational and financial implications resulting from the requirement for VIA to undertake modifications to the Renaissance Cars in order to remedy the obstacles could be mitigated by planning the modifications to occur over time. The Agency noted that VIA could start addressing the obstacles by focussing on those Renaissance Cars that are shells and those that are partially completed. The Agency notes that despite the fact that the March Decision required VIA to submit a plan for the Agency's consideration that sets out how VIA can address the obstacles that exist in the Renaissance Cars over a reasonable period of time, VIA failed to address this element of the direction to show cause.

Furthermore, as VIA is required to remove every Renaissance train set from service to address the safety concerns raised by Transport Canada, some or all of the modifications that are required by the Agency could be implemented at the same time to further minimize the impact on VIA's operations.

It is the Agency's opinion that the direct costs of $133,125 for the installation of two movable aisle armrests in each of the 47 Renaissance coach cars is a reasonable cost given the importance of such a feature to many persons with disabilities, and particularly to those persons who use a wheelchair. As set out above, the Agency is of the opinion that movable aisle armrests on double seats are essential to the accessible travel by rail of persons with disabilities who require the use of more than one seat to accommodate their disability, either for themselves or for an attendant to sit directly beside them and the lack of movable aisle armrests on the double seats in the Renaissance coach cars could compromise the ability of some persons with disabilities to travel on the Renaissance trains.

As discussed above, in the "VIA's general economic arguments regarding the obstacles in the Renaissance Cars" section, the Agency is of the opinion that VIA has not demonstrated to the Agency's satisfaction, by way of the various general arguments that it has made in response to the Agency's directions to show cause, that it cannot afford the costs of remedying the undue obstacles determined by the Agency to exist in the Renaissance Cars.

7. THE SPACE IN THE ECONOMY COACH CARS FOR PERSONS TRAVELLING WITH SERVICE ANIMALS

VIA has confirmed that it is structurally feasible to install movable aisle armrests on the double-seat side of the economy coach cars and, based on the foregoing, the Agency concludes that VIA has not shown cause why it would not be possible from an economic perspective to remedy this obstacle. The importance of such armrests to persons with disabilities, as set out above and particularly given the elevated position of the seats off the floor, outweighs the financial concerns as presented by VIA and as analyzed above by the Agency. The Agency, therefore, finds that the lack of movable aisle armrests on double-seat side of the 47 coach cars constitutes an undue obstacle to the mobility of persons with disabilities.

The Agency recognized in the March Decision that persons with disabilities have the same rights as others to full participation in all aspects of society and that equal access to transportation is critical to the ability of persons with disabilities to exercise that right. The Agency further noted that the principle of the right to equal access to transportation reflects a recognition that persons with disabilities have the same needs to travel as others and want to have the same travel options that are provided to others, including the Option of travelling with friends, family or colleagues.

In the March Decision, the Agency noted the fact that the Renaissance Cars represent a significant decrease in accessibility for persons with disabilities who travel with service animals. Specifically, the Agency found that the Renaissance Cars provide a significant reduction in options for persons with disabilities who travel with service animals. The Agency noted that while there is presently a wide choice of seats on VIA's existing equipment for persons to be able to sit with their service animals at their feet, including a number of spaces so that persons who use service animals can travel together, this will not be the case with the Renaissance Cars. Specifically, the Agency noted that, as a result of the seats in the economy coach cars being installed on a raised platform that slopes to provide storage space for hand luggage, there is no room at these seats for a service animal.

Further, the Agency noted in the March Decision that the Rail Code provides that each passenger rail car (other than a sleeping car) should have a number of passenger seats that each provide enough floor space for a service animal to lie down.

While VIA indicated that it could accommodate persons travelling with service animals on the Renaissance trains in four areas (i.e., the "accessible suite" in the service cars; the wheelchair tie-down/single removable seat space in the economy coach cars; and the single removable seat in the VIA-1 coach cars, or each sleeper unit in the sleeper cars), the Agency found that there was insufficient space in the economy coach cars for such persons. The Agency found that this was particularly the case due to the fact that, with the reservation of the tie-down by a person who uses a wheelchair, there is no other space in the economy coach car to meet the needs of persons travelling with service animals. As such, the Agency found the insufficient space in the economy coach cars to accommodate persons travelling with service animals to be an obstacle to the mobility of persons travelling with service animals.

The Agency notes that VIA did not, in response to either of the two directions to show cause, file any submissions specific to the Agency's determination regarding the insufficient space in the economy coach cars to accommodate persons with disabilities travelling with service animals.

In its submission of August 18, 2003, CCD submitted that, as part of the plan for Option 3 that provides for the lowering of seats in Rows 16 and 17 on the single-seat side of the cars, space to accommodate two persons using service animals travelling together can be addressed by lowering the single seat in Row 15 to floor level and making it reversible. CCD pointed out that the technology for making a seat reversible is affordable and readily available. Finally, CCD submitted that VIA has not quantified the costs of being able to accommodate only one person using a wheelchair or one person accompanied by a service animal per train.

In its March Decision, the Agency noted that VIA has already removed the platform under the seat in Row 17 on the double-seat side in order to install a tie-down mechanism and a removable seat in addition to having modified the supporting seat structure under the double seats in Row 16. Based on this fact, the Agency concluded that the removal of portions of the raised seat platform is structurally and economically feasible. The Agency notes that, in this regard, in its response to the Agency's two directions to show cause, VIA did not dispute this conclusion. Further, the Agency noted that the removal of another portion of the platform in the economy coach cars to permit a minimum of two more seats to be installed at floor level to provide adequate space for service animals would be a reasonable accommodation for persons who travel with service animals because it would restore some of the travel options that they presently have and because there is no evidence to suggest that this cannot be done.

The Agency notes that the diagrams in respect of Option 2 and "Option 2 and 3 Current Design" that were included with VIA's submission of July 14, 2003 indicate that, notwithstanding the modifications that VIA will be required to make in order to address the safety concerns regarding the location of the washrooms vis-a-vis the CEM Zone, it is structurally feasible to remove other portions of the raised seat platform in order to provide for seating areas at floor level. Furthermore, the Agency finds no evidence on file to indicate that a portion of the raised seat platform on the double-seat side of the economy coach cars cannot be lowered to floor level in order to provide at least two more seats at floor level to accommodate persons travelling together with service animals.

The Agency notes that Option 3 provides for the decommissioning of the washroom at the vestibule-end of the economy coach cars. The Agency is of the opinion that the removal of this washroom along with the bulkhead wall dividing the washroom from the seating area of the car would provide an opportunity to remove the platform under the first Row of seats on the double-seat side of the car to provide dedicated space for one or two persons travelling with service animals. Furthermore, when these seats are not required by persons with service animals, there is no doubt that other persons with disabilities who would have difficulty negotiating the step up onto the raised seat platform would find that these seats better meet their needs. Alternatively, the Agency notes that there may be economic advantages to removing the platform under a Row of double seats at the tie-down end of the cars, given that Option 3 already provides for the removal of the platform in order to install the wheelchair-accessible washroom and the single seats in Rows 16 and 17.

As the Agency noted in the March Decision and as expressed above, the raised seat platform in the Renaissance economy coach cars not only significantly reduces opportunities available to persons who travel with service animals that are currently available to them in VIA's other passenger rail cars but also simply does not provide space for service animals due to the fact that the sloping, raised platform affords no level space for service animals around the seats.

Finally, as stated above, the Agency notes that despite having been directed in two show cause orders, to respond to the Agency's findings, as set out in the March Decision, regarding the insufficient space in the economy coach cars to accommodate persons travelling with service animals, VIA chose not to file any submissions concerning this matter.

Based on the information on file, the Agency is of the opinion that VIA has not shown cause why it cannot provide more seating at floor level with sufficient space to accommodate persons travelling with service animals, either alone or with another person travelling with a service animal. As such, the Agency finds that the insufficient space in the economy coach cars to accommodate persons travelling with service animals constitutes an undue obstacle to their mobility.

8. EXTERIOR STAIRS

(a) Riser heights and depths of the steps

In the March Decision, the Agency recognized the importance of uniform stair risers and depths to persons with disabilities, especially those with visual impairments. Significant differences in riser heights may make it more difficult for such persons to negotiate stairs as their sense of where the next step should be may be affected by changes in riser heights. Similarly, persons with visual impairments may have more difficulty knowing where to place their feet if there are significant differences in the depths of steps.

The Agency further indicated that the actual height of stair risers and the depth of steps are very important in determining whether a person with a disability will have difficulty in ascending and descending stairs. Steps which are shallow and for which the risers are high result in the stairs being steep, which pose obvious difficulties for persons with disabilities, including those with mobility and visual impairments.

The average riser height on the Renaissance Cars is 24.7 cm [9.72"], which exceeds the maximum specified in the CSA Barrier-Free Design Standard by 6.7 cm [2.64"]. Additionally, the most shallow step falls short of the minimum depth specified in the CSA Barrier-Free Design Standard by 6 cm [2.36"].

The Agency indicated, in the March Decision, that there was no evidence on file as to why the Renaissance car stairs could not meet the following CSA Barrier-Free Design Standard specifications, while at the same time recognizing that space limitations may restrict the dimensions of certain train features:

- stair risers should not exceed 18 cm [7.09"] in height; and,
- steps should be at least 28 cm [11.02"] deep.

In the March Decision, the Agency determined that the riser heights and depths of the steps constitute obstacles to the mobility of persons with disabilities.

(b) Lack of closed stair risers

The Agency noted in the March Decision that given that the Renaissance Cars coming into service beyond Phase I will have closed stair risers, 12 cars will not have closed risers. The Agency is of the opinion that the lack of closed risers will make it more difficult for persons who are blind or passengers with impaired vision, including those who use guide dogs, to ascend and descend the stairs on the Renaissance Cars. Additionally, the inconsistent availability of closed stair risers on different Renaissance train consists may cause added difficulties to persons with disabilities who rely on them to safely and securely navigate the stairs, as such inconsistencies make it impossible for persons who are blind or visually impaired to predict from one trip to the next whether this orientation tool will be available. Compounding this problem is the fact that persons who are blind or visually impaired will not be able to determine in advance whether they should request assistance to safely negotiate the stairs.

In the March Decision, the Agency determined that the lack of closed stair risers constitutes an obstacle to the mobility of persons with disabilities.

(a) Riser heights and depths of the steps

As set out in the March Decision, the Agency recognizes the importance of steps that are of a height and depth that permit safe boarding and deboarding by persons with disabilities and the importance of closed stair risers to persons with disabilities, including those who are blind or who have impaired vision and those who use guide dogs. The Agency also recognizes the importance of the ability of persons with disabilities to maintain as much independence as possible in their use of the federal transportation network. The Agency indicated in the March Decision that the difficulties that result from these obstacles are significant enough that they can compromise the ability of persons with disabilities to travel on the Renaissance trains.

In response to the show cause order, VIA indicated that it is not technically possible to provide stairs with closed risers, having riser heights and tread depths in accordance with the CSA Barrier-Free Design Standard. VIA explained that the top of the car floor is approximately 50 inches above the top of the rails and that, depending on the height of the low-level platform above the top of the rails, at least 4 or perhaps 5 steps would be required. VIA also submitted that it is not structurally possible to design such a system and, as a result, VIA stated that it cannot estimate the cost of such a proposal.

Finally, VIA submitted that there is no solution for the problems pertaining to the riser height and stair depths, other than as the cars are presently built, and that there is simply no space left on the train for any improvements.

CCD stated that the steps into and out of the cars are of major concern for persons with disabilities, other than those boarding in wheelchairs. CCD explained that people boarding a car know that the distance between the bottom step and the platform or the stepping box may be different from that of the fixed steps; however, they come to rely on the steps themselves being of a fixed height and depth. CCD indicated that VIA has added a third irregular step to the two already attached to the cars at the time they were purchased. CCD submitted that serious accidents can occur if people are taken by surprise and stumble on the stairs. CCD stated that although it recognizes that platform heights vary across the country, fixed steps on the train should be regular in shape and have a closed riser. In this regard, Ron Woollam submitted that there is no reason why this cannot be accomplished. CCD requested that the Agency require that the third step be removed and replaced with a step of consistent height and depth with that of the other two and have a riser comparable to those on the other steps.

In response to the foregoing submissions by CCD, VIA stated that there is no possibility of a serious accident by reason of the stairs. VIA commented that the biggest difference in the riser heights is 10 millimetres or a little more than 3/8 of an inch and expresses the view that this is not a meaningful dimension.

Mr. Woollam explained that the bottom step, which was added by VIA, is a fixed step in that it is rigidly attached to the bottom of the second step and does not experience any hinging or folding action. He submitted that it could, therefore, have been designed with any dimension for the rise and depth of VIA's choosing. Mr. Woollam stated that the only limitation that he can foresee regarding the design of this step relates to the fact that, when the steps are retracted, the fixed step protrudes outward from the side of the car. Mr. Woollam expressed the opinion that because this is a fixed design, VIA would easily be able to incorporate a closed riser on this step.

Mr. Woollam further explained that the top two steps are hinged and retract into the space under the vestibule threshold. Mr. Woollam stated that it would appear that the greatest variance in rise exists between the vestibule floor and the first step. Mr. Woollam noted that the only step without a closed riser is between the first fold out step and the second. With respect to VIA's reference to possible additional steps, Mr. Woollam stated that only the existing steps require adjusting or redesign to provide a consistent rise and run, along with closed risers. Mr. Woollam stated that although he does not have access to the details of the folding mechanism and its design, it is his opinion that VIA's claim that "it is not structurally possible to design such a system" is unreasonable.

With respect to CCD's request that the stairs be modified to provide uniform riser heights, the Agency refers to the March Decision, wherein the Agency recognized that the risers on the retractable stairs are not entirely uniform in height. However, the Agency noted that they only vary in height by 1 cm [.39"] between the first and second steps and by .5 cm [.20"] between the second and third steps in the existing car. The Agency concluded that such slight variations are unlikely to cause persons with disabilities difficulty in negotiating the steps.

The show cause order dealt with the fact that the height of the riser exceeds the maximum specified in the CSA Barrier-Free Design Standard and the depths of the steps fall short of the minimum specified in the Standard. Although the Agency indicated in the March Decision that there was no evidence on file as to why the Renaissance car stairs could not meet the CSA Barrier-Free Design Standard specifications, the Agency recognized that space limitations may restrict the dimensions of certain train features.

The Agency notes that VIA has since indicated that in order to provide stair risers that do not exceed 18 cm [7.09"] in height and steps that are at least 28 cm [11.02"] deep, at least four or perhaps five steps would be required, which VIA indicated is not structurally possible as there is no space left on the train for any improvement to the stairs.

In the March Decision, the Agency referred to the Rail Code which recognizes the applicability, where appropriate, of the CSA Barrier-Free Design Standard. The Agency indicated that the appropriateness of referring to the CSA Barrier-Free Design Standard is dependent on many factors, including the structural limitations of rail cars. The Agency further acknowledged that consideration must be given to the fact that the specifications set out in the CSA Barrier-Free Design Standard were developed for buildings and facilities and that adjustments might need to be made in the context of a rail car. In considering whether it is appropriate to require VIA to apply such specifications, the Agency stated that it would consider the submissions made by the parties.

As set out in the March Decision, the Rail Code provides that if structural limitations of a passenger rail car prevent any of the specified criteria regarding stairs from being satisfied, a rail carrier should provide assistance, if requested, to a person with a disability in ascending and descending the stairs. The Agency noted that VIA is to provide a portable stepping box that will be used to reach the first/last step from low-level platforms and that its onboard personnel will, upon request, provide assistance to persons with disabilities.

Conclusion

Although the Agency recognizes that it is desirable that the CSA Barrier-Free Design Standard specifications for stair risers and depths be respected, in view of the space limitations on the Renaissance Cars to permit the installation of stairs with these specifications, the Agency finds that the obstacle posed by the riser heights and depths of the steps is not undue.

(b) Lack of closed stair risers

(i) Structural factors

In light of VIA's intention to install closed stair risers in the trains beyond Phase I, the Agency stated in the March Decision that it is apparent that it is structurally feasible for VIA to install closed stair risers on the Renaissance Cars in Phase I. The Agency notes that in response to the show cause order, VIA has not made further submissions with respect to the structural implications of installing closed risers on the Renaissance trains that presently do not have them.

(ii) Economic factors

The Agency notes that VIA did not present economic or operational arguments specifically related to the undueness of the obstacle posed by the lack of closed stair risers on the Phase I Renaissance Cars.

As discussed above in the "VIA's general economic arguments regarding the obstacles in the Renaissance Cars" section, the Agency is of the opinion that VIA has not demonstrated to the Agency's satisfaction, by way of the various general arguments that it has made in response to the Agency's directions to show cause, why it cannot afford the costs of remedying the undue obstacles determined by the Agency to exist in the Renaissance Cars.

Conclusion

Based on the foregoing, the Agency concludes that VIA has not shown cause why it would not be possible, from an economic perspective, to remedy the obstacle posed by the lack of closed stair risers. In light of this and the fact that it is structurally feasible to install a closed stair riser on each step of the Renaissance Cars, the Agency finds that the lack of closed stair risers on the Renaissance Cars in Phase I constitutes an undue obstacle to the mobility of persons with disabilities.

9. TRAIN CONSISTS

As set out in the "Principles of Accessibility" section in the March Decision, the Agency is of the opinion that independent access is fundamental to the concept of accessibility and that persons with disabilities should have the choice to remain in their own wheelchairs whenever possible. Furthermore, the Agency is of the opinion that independent and easy access to an "accessible washroom" is fundamental to the accessibility of rail travel by persons with disabilities. Ideally, rail cars should provide self-contained accessibility such that there is easy access from wheelchair-accessible features such as wheelchair tie-downs to wheelchair-accessible washrooms in order that persons can move between the accessible features easily and independently.

The Agency notes that the principle of independence and self-contained accessibility are reflected in the Rail Code which sets out that in new cars such as the Renaissance Cars, there should be at least one wheelchair-accessible washroom in a coach car with a wheelchair tie-down and, where applicable, one wheelchair-accessible bedroom, including a wheelchair-accessible washroom, in a sleeper car, in each train consist.

As set out above, the Agency has determined that there are two undue obstacles in the washroom in the "accessible suite"and, as a result of the Agency's findings, a wheelchair-accessible washroom is to be located in the economy coach cars. In this regard, with respect to the Renaissance overnight train consists, the Agency notes that the "accessible suite" that is not adjacent to the economy coach car will constitute an obstacle to the mobility of persons who use Personal Wheelchairs, as they will not be able to independently access the accessible washroom.

In looking at the train consists, as reflected in the March Decision, the Agency finds that the Montréal-Toronto and the Montréal-Halifax overnight train consists are such that the "accessible suite" that is being sold as sleeping accommodation is not marshalled adjacent to an economy coach car and, in this way, poses obstacles to the mobility of persons using Personal Wheelchairs. The Agency notes that, as set out in VIA's 2003-2007 corporate plan filed with the Agency, VIA has decided to no longer operate the Renaissance Cars on the Montréal-Gaspé route and as such the Agency is not considering this particular train consist.

In response to the show cause order, VIA initially submitted that in order to provide an accessible washroom for persons using the tie-down in the economy coach cars on the Montréal-Toronto overnight train, two additional service cars would need to be built for use on trains 50 and 51. VIA indicated that this would entail manufacturing costs of $6 million and maintenance costs of $4.8 million over the 20 years of life for the two new cars.

CCD submitted that if there was an accessible washroom in each coach car, it would save VIA $4.737 million in manufacturing costs plus $4.8 million in operating costs compared to Option 1, assuming the other coach obstacles are to be removed.

In a subsequent submission, however, VIA stated that there is no solution for the Montréal-Toronto overnight train consist in the economy coach cars. VIA added that any persons who use wheelchairs can be accommodated in the "accessible suite", which VIA believes is sufficient.

Mr. Woollam stated in his report to CCD that Option 3 would address the problem of no accessible washroom on the Montréal-Toronto overnight consist for a person using the wheelchair tie-down, provided it is truly an accessible washroom.

As discussed in the "Framework of the Decision" section above, the Agency is of the opinion that each train consist must provide one accessible seating area which, in view of the Agency's determinations in this Decision, will be self-contained in the economy coach cars. In the case of night train consists, however, each train must provide both an accessible seating area as found in the economy coach cars and an accessible sleeping area.

The Agency notes, however, that the above will not be possible on any of the Renaissance night trains, which operate between Montréal and Toronto, and between Montréal and Halifax. The difficulty lies in the fact that persons with disabilities who book the use of an "accessible suite" on the night trains will always be in a service car that is marshalled with the "accessible suite" adjacent to a sleeper car as opposed to being adjacent to an economy coach car that contains a wheelchair-accessible washroom.

Nonetheless, the Agency is of the opinion that it is possible to eliminate this obstacle for these two train consists by ensuring that the "accessible suite" offered for use as sleeping accommodation to persons using Personal Wheelchairs is immediately adjacent to the tie-down end of an economy coach car, where the wheelchair-accessible washroom will be located. This could be accomplished on the Montréal-Toronto consists by re-marshalling the service car and the economy coach car in this way. As VIA has a second service car marshalled with the "accessible suite" immediately adjacent to the tie-down end of an economy coach car on the Montréal-Halifax consist, the only required change would be in VIA's reservation policy to ensure that this suite is also made available for use as sleeping accommodations for persons using Personal Wheelchairs. With these two measures, persons occupying these "accessible suites" who cannot use the washroom facilities in the suite or who prefer independent access would be able to use the wheelchair-accessible washroom in the adjacent economy coach cars. Further, the Agency notes, as set out above, that the obstacles along the route between these two areas will be remedied.

Given the obvious importance of having a sleeper unit with access to a wheelchair-accessible washroom and in light of the fact that this can be provided, with no economic or structural implications, on the Montréal-Toronto overnight train consist by remarshalling the service car and the economy coach car and by ensuring that the "accessible suite" that is marshalled adjacent to the economy coach car on the Montréal-Halifax train consist is available for use as sleeping accommodations, the Agency is of the opinion that these two train consists constitute undue obstacles to the mobility of persons using Personal Wheelchairs.