Decision No. 115-AT-R-2005
Follow-up - Decision No. 460-AT-R-2005
March 3, 2005
File No. U3570/04-5
 On January 23, 2004, Meenu Sikand filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.
 In its Decision No. LET-AT-R-46-2004 dated February 12, 2004, the Agency directed VIA Rail Canada Inc. (hereinafter VIA) to file its answer to the application and requested Ms. Sikand to provide additional information concerning the services that were requested in advance with respect to the reservation of the wheelchair tie-down and the statement that she did not have access to the washroom for the duration of the trip from Toronto to Ottawa on December 2, 2003. Ms. Sikand filed her response on February 26, 2004.
 On March 11, 2004, VIA filed its answer to the application, including copies of the reservation records for Ms. Sikand's trip and the policies and procedures related to the reservation of wheelchair tie-downs. Ms. Sikand did not file a reply.
 In its Decision No. LET-AT-R-106-2004 dated April 16, 2004, the Agency requested Ms. Sikand and VIA to provide clarification and additional information with respect to the lack of access to the washroom, the unavailability of the reserved tie-down, and policies and procedures related to tie-downs.
 In its Decision No. LET-AT-R-122-2004 dated April 29, 2004, the Agency granted Ms. Sikand an extension until May 3, 2004, and VIA an extension until May 21, 2004, to file their responses. Ms. Sikand and VIA filed their submissions on May 3 and May 21, 2004, respectively. The Agency also considered VIA's request for a meeting between VIA and Agency staff in order to discuss the information requested by the Agency in Decision No. LET-AT-R-106-2004, to provide a timely response, and to discuss how VIA's response can be transmitted to the Agency. Given that VIA's response to the Agency's questions and requests for further information must form part of the written record, the Agency denied VIA's request at that time.
 In its Decision No. LET-AT-R-146-2004 dated May 25, 2004, the Agency requested VIA to file comments, if any, on its meal distribution policy.
 In its Decision No. LET-AT-R-149-2004 dated June 1, 2004, the Agency granted VIA an extension until June 18, 2004 to file its comments. VIA filed its submission concerning its meal distribution policy on June 11, 2004.
 In its Decision No. LET-AT-R-153-2004 dated June 4, 2004, the Agency granted Ms. Sikand an extension until June 18, 2004 to file her comments on VIA's submission dated May 21, 2004. Ms. Sikand filed her response on June 17, 2004.
 In its Decision No. LET-AT-R-168-2004 dated June 29, 2004, the Agency requested VIA to file additional information, if any, regarding the position set out in its June 11 submission concerning its meal distribution policy as the Agency informed the parties that VIA's meal distribution policy will be addressed pursuant to section 172 of the Canada Transportation Act (hereinafter the CTA). Ms. Sikand was granted time to reply to VIA's comments.
 In its Decision No. LET-AT-R-172-2004 dated July 6, 2004, the Agency granted VIA an extension until July 16, 2004 to file its comments. VIA filed additional information concerning its meal distribution policy on July 16, 2004.
 In its Decision No. LET-AT-R-195-2004 dated August 4, 2004, the Agency granted Ms. Sikand an extension until August 22, 2004 to file her comments on VIA's submission dated July 16, 2004. Ms. Sikand filed her response, which contained interrogatories directed at VIA, on August 20, 2004.
 In its Decision No. LET-AT-R-299-2004 dated October 27, 2004, the Agency provided VIA with an opportunity to respond to Ms. Sikand's interrogatories. VIA filed its response on November 5, 2004.
 Pursuant to subsection 29(1) of the CTA, the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an indefinite extension of the deadline.
 In addition to accessibility matters, Ms. Sikand raised various service issues, including the fish meal she was offered on the outbound portion of her trip, the non-availability of meals that had been requested for her attendant and her son, and the lack of a seat for her son. In its Decision No. LET-AT-R-106-2004 dated April 16, 2004, the Agency determined that these matters are not related to the accessibility concerns raised by Ms. Sikand. Rather, they represent customer service issues that could affect any traveller. Therefore, the Agency will not be addressing these issues as part of its investigation of this application, which is being conducted pursuant to section 172 of the CTA, that allows the Agency to inquire into matters to determine whether there was an undue obstacle to the mobility of persons with disabilities.
 Ms. Sikand also raised the issue of the reduced meal option on the return trip due to the meal service having been started at the opposite end of the car from the wheelchair tie-down. Initially, the Agency by way of Decision No. LET-AT-R-106-2004 dated April 16, 2004, determined that this matter was not related to the accessibility concerns Ms. Sikand had raised. However, in light of new information filed by Ms. Sikand and VIA's submission concerning its meal distribution policy, the Agency, as reflected in Decision No. LET-AT-R-168-2004 dated June 29, 2004, determined that it will address this matter pursuant to the accessibility provisions of the CTA.
 The issue to be addressed is whether the unavailability of a reserved wheelchair tie-down and the lack of access to the washroom while Ms. Sikand travelled with VIA between Toronto and Ottawa on December 2, 2003, and whether the distribution of meals pursuant to VIA's policy constituted undue obstacles to Ms. Sikand's mobility and, if so, what corrective measures should be taken.
 Ms. Sikand uses an electric wheelchair with prescribed, customized and moulded seating to support her back. Her travel agency made a reservation for her, her attendant and her two-and-a-half year old son to travel from Toronto to Ottawa on Train No. 48 on December 2, 2003, with a return date of December 4, 2003, which included a request for her to occupy a wheelchair tie-down. VIA's reservation record shows that Ms. Sikand was assigned seat 57 in Car 01, which is the location of the wheelchair tie-down in the VIA-1 car. Her attendant and son were assigned seat 55. VIA's records also show that another person who uses a wheelchair had confirmed a reservation to travel in a second wheelchair tie-down on the same train and had been assigned seat 57 in Car 91.
 Although there were two wheelchair tie-downs in Train No. 48 on December 2, only the tie-down in Car 01 was accessible to persons who use a wheelchair. The tie-down located in Car 91 was not accessible to passengers who use a wheelchair due to the manner in which this car was marshalled. As the tie-down in the VIA-1 cars is located at the opposite end of the car from the vestibule, a person who uses an electric wheelchair can only access a tie-down by entraining through the vestibule of an adjoining car, provided that this adjoining car is marshalled such that the vestibule is adjacent to the tie-down in the VIA-1 car. In this case, Car 91 was marshalled in reverse, with the tie-down end of the car directly behind the locomotive, which left the tie-down inaccessible.
 As only one tie-down was accessible upon boarding VIA-1 Car 01, VIA gave Ms. Sikand the choice of either being driven to Ottawa by taxi or transferring to a regular seat. Ms. Sikand chose to transfer to a regular seat because the weather was cold, she has back problems and her son could not be in a taxi for the duration of the trip.
 The tie-down area was empty when Ms. Sikand boarded the car. She positioned her wheelchair in front of the two seats facing the tie-down, from where her attendant transferred her to seat 55, which was the aisle seat. Once the other person who uses a wheelchair boarded the car, VIA personnel turned these two seats around in accordance with VIA's policy whereby passengers not travelling with the individual in the tie-down should face the opposite direction. This resulted in Ms. Sikand being seated next to the window, with her attendant occupying the adjoining aisle seat. Ms. Sikand's wheelchair was stored in the valet area of the car, which is near the accessible washroom, approximately five feet from where she was seated.
 Upon arrival in Ottawa, once the occupant of the tie-down deboarded, the row of seats was turned around to face the tie-down. Ms. Sikand's wheelchair was brought to the empty space in front of the two seats and her attendant transferred her to her wheelchair.
 On the return portion of her trip, Ms. Sikand occupied a wheelchair tie-down in a VIA-1 car. When the meal service was offered in the VIA-1 car, the meal distribution, which included three meal options, started at the end of the car opposite to the tie-down area, thereby resulting in Ms. Sikand, who was in the tie-down, being told that most choices on the menu were no longer available.
POSITIONS OF THE PARTIES
 Ms. Sikand submits that the options offered by VIA on December 2, due to the unavailability of a second wheelchair-tie down, were not good options and that the attitude of VIA's personnel was one of "take it or leave it". Ms. Sikand advises that she chose to transfer to a seat because a five to six-hour taxi ride would have aggravated her serious back problems, her son would not have sat in a dark van for that period of time and it was extremely cold that evening.
 With respect to VIA's contention that Ms. Sikand was slight compared to the person who occupied the tie-down, Ms. Sikand states that she is not a very light person and that VIA offered her the option of either transferring to a regular seat or taking a taxi prior to the arrival of the other person using a wheelchair.
 Ms. Sikand points out that even though her wheelchair was stored five feet away, there was insufficient space to bring it close enough to allow her attendant to transfer her to it, because she was sitting by the window and the seats could not be turned to their original position until the tie-down was vacated. Ms. Sikand states that she can not walk any distance and therefore could not get close to her wheelchair, which she needed to be able to access the washroom. Ms. Sikand submits that this resulted in her not being able to access the washroom for six hours, which was an affront to her dignity and which jeopardized her safety. Ms. Sikand maintains that VIA personnel failed to acknowledge or understand that her wheelchair is her only means of mobility. Ms. Sikand adds that she "did inquire about the possibility of using my wheelchair, which they couldn't bring closer to me until the other passenger using Tie-down was off the train."
 Ms. Sikand submits that even if she had moved from the window to the aisle seat, she would not have been able to transfer to her wheelchair as it was too wide to fit in the aisle. According to Ms. Sikand, the seats would have had to be turned around to their original position, which would have required moving the person in the tie-down to another car to allow Ms. Sikand to access the washroom.
 Ms. Sikand further submits that VIA personnel never informed her that they carry onboard wheelchairs. Nonetheless, it is Ms. Sikand's opinion that an onboard wheelchair would not have been of any assistance as there was not enough space to bring it close to her and for her to transfer to it. In addition, Ms. Sikand states that none of the VIA personnel asked her about her safety and comfort during the trip, nor did they ask her if she needed to use the washroom.
 Ms. Sikand states that with respect to the meal distribution in the VIA-1 car, as a person with a mobility disability, her only choice is to sit in the tie-down section and that as VIA's meal distribution service always starts at the opposite end of the railcar from the tie-down, she never has the full menu from which to choose. Ms. Sikand submits that on the return portion of her trip, when she voiced her displeasure that there was only one meal option left on the menu, VIA personnel informed her that it was VIA's meal distribution policy and that if she did not like the only available meal option, she could choose not to eat the meal and, in the future, she could request a meal for a diabetic person in advance. Ms. Sikand points out, however, that she does not need a special meal. She adds that if VIA had informed her travel agency that the meals provided in VIA-1 cars to passengers paying coach fares are an additional benefit provided as a courtesy and that they are available only when other passengers have already made their selection, she would not have raised this matter.
 Ms. Sikand indicates that the onboard VIA agent from Ottawa to Toronto asked her to keep her son quiet as other passengers in first class had paid a lot of money to travel and would prefer a peaceful environment. Ms. Sikand submits that her son was playing with his toys in his seat and was not misbehaving, and that she was furious at the implication that she was not a paying customer. Ms. Sikand further submits that when she said that she had a little boy who wanted to eat breakfast on this five-hour trip, the agent suggested that she send a complaint to VIA.
 Ms. Sikand contends that VIA's policy regarding customers who use a wheelchair and travel in first class but pay coach fares, whose attendants travel free of charge and who receive a complimentary meal, results in these customers being treated as "poor cousins" who should not expect "courteous, appropriate, and dignified treatment/service" like others in first class. Ms. Sikand alleges that this policy contributed to the rude attitude shown to her on her trip. She submits that VIA personnel saw her as a customer who should be thankful to be allowed to sit in first class and be able to reach her intended destination. Ms. Sikand states that such an attitude is a disgrace in Canada.
 VIA apologizes for the inconvenience and states in its submission received by the Agency on March 11, 2004 that one of the two tie-downs on the train in question was unavailable because it had been placed the wrong way, making it impossible to access the tie-down. VIA explains that this occurred because of inclement weather conditions and an error made in the marshalling of the cars. However, in a subsequent submission, VIA states that, with respect to Train No. 48, no error was made in the remarshalling; rather, the error was made in the inventory availability. VIA advises that trains on the Toronto-Ottawa route normally have one tie-down available but that, subject to availability of equipment, additional VIA-1 cars with a tie-down are added on an ad hoc basis in response to market demand. VIA states that the tie-down in the additional VIA-1 car is not available for sale as the car is usually added to the train consist [train consist is known as "a grouping of rail cars connected together to make up a train"] shortly before its departure time in areas where full facilities to turn cars are not available and/or there is insufficient time to do so without affecting on-time performance. VIA explains that, in the present case, only one tie-down was accessible on board but that the mistake was made in making two tie-downs available in the inventory, and submits that procedures have been put in place to prevent a recurrence of this error.
 VIA adds that restrictions such as available tracks, time and manpower can all serve to prevent VIA from making the second tie-down available for sale in the inventory.
 VIA claims that its only available course of action in this situation was to offer the two noted options to Ms. Sikand, and submits that these options were presented to Ms. Sikand rather than to the other passenger who had a reservation for a tie-down because Ms. Sikand could be transferred from her wheelchair with more ease than the other passenger who was much heavier.
 VIA states that the Service Manager on Train No. 48 periodically asked Ms. Sikand and her attendant if they were comfortable and secure. VIA also maintains that the Service Manager also asked Ms. Sikand whether she needed to use the washroom, to which she responded in the negative. VIA states that two onboard wheelchairs, which fit in the aisles, were available but that they were not offered to Ms. Sikand as her own wheelchair, if requested, could have been brought close enough to the seats to allow for a transfer.
 With respect to its meal service, VIA submits that it is not possible to provide each of the three options for every passenger on the train and, as a consequence, many passengers do not receive their choice by the time the service reaches their particular seating area. VIA states that it issues the same number of meals as there are passengers travelling in VIA-1 on a per-trip basis, adjusting this quantity up to 15 minutes prior to the train's departure from major terminals, such as Montréal and Toronto. VIA explains that each VIA-1 car has one team of two employees; one employee offers beverages, working his/her way from the tie-down area, while the other collects tickets and offers a choice of three meals, working from the opposite end of the car by the galley. VIA explains that, in this manner, the employees do not get in each other's way and the work flow is not impeded.
 It is VIA's position that this is a reasonable policy designed with the passenger's comfort and safety in mind, which was developed with an objective of providing quality service in an efficient manner, while keeping in mind the restrictions of time and space. VIA points out that other passengers are inconvenienced because their first or second choice of meal cannot be made available, depending on the selections made by passengers served before them. VIA adds that the bulk of passengers travelling in wheelchairs pay coach fare; the wheelchair tie-down is contained in the VIA-1 car; and any attendants travelling with them do so free of charge. VIA states that neither the person nor the attendant are entitled to receive a meal as coach passengers but that because they travel in the VIA-1 car, the person and attendant receive an additional benefit, namely a meal service, free of charge.
 In a subsequent submission, however, VIA states that it has extended its meal policy to give a meal to all persons in the tie-down space in the VIA-1 car, regardless of the fare they pay. VIA indicates that it has arranged for all persons with disabilities to select their meal of choice from an inventory of meals available on the train on the day in question, when making their reservation.
 VIA apologizes for the unprofessional service Ms. Sikand reported receiving from its on-train personnel. It submits that all of its employees are expected to provide courteous and efficient service to all its customers on a consistent basis.
 As a token of its concern for the difficulties experienced by Ms. Sikand in having to transfer to a regular seat, VIA provided Ms. Sikand with a transferable travel certificate valued at $50.00 and valid for 12 months.
ANALYSIS AND FINDINGS
 In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.
 An application must be filed by a person with a disability or on behalf of a person with a disability. In the present case, Ms. Sikand has a mobility impairment and uses a wheelchair and, as such, she is a person with a disability for the purpose of applying the accessibility provisions of the CTA.
 To determine whether there is an undue obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether the applicant's mobility was restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle was undue. In order to answer these questions, the Agency must take into consideration the particular facts of the case before it.
Whether the applicant's mobility was restricted or limited by an obstacle
 The word "obstacle" is not defined in the CTA. This implies that Parliament did not want to restrict the Agency's jurisdiction in view of its mandate to eliminate undue obstacles in the federal transportation network. Furthermore, the word "obstacle" lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement.
 In determining whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency looks to the travel experience of that person as expressed in the application. There is a broad range of circumstances where the Agency has found obstacles in the past. For example, there are cases of obstacles where the person was prevented from travelling, where the person was injured in the course of his or her travels (such as where the lack of appropriate accommodation during travel affects the physical condition of the passenger), or where the person was deprived of his or her mobility aid after the trip as a result of damage caused to the aid while it was being transported. Also, the Agency has found obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience were such as to detract from the person's sense of confidence, dignity, safety, or security, recognizing that these feelings may be such as to disincline a person from future travel.
The case at hand
Unavailability of a reserved tie-down
 The concept of accessibility is fundamental to the notion of independence. Persons with disabilities want as much independence in life as possible and their use of transportation services is no exception; equivalent access to the transportation network involves the ability of persons with disabilities to move through the network with as much independence as possible.
 The implications of not having independent access are significant in that persons with disabilities have to be dependent on others to assist them in their travel, whether it be transportation industry workers or, in some cases, their own attendants. In addition, there are a variety of problems that can be associated with assisted access, including human error, inconvenience, delays, affronts to human dignity and pride, cost, uncertainty, and no sense of confidence or security in one's ability to move through the network.
 The Agency is of the opinion that one important aspect of the principle of independence is the recognition of the importance of a person's own mobility aid to his/her independence, dignity, safety and comfort. In this regard, the Agency is aware that wheelchairs are often customized with supports and attachments to accommodate the particular needs of the person. By providing wheelchair tie-downs, rail cars provide an important opportunity within the transportation network for a person to be able to choose to remain in his/her own wheelchair and the Agency is of the opinion that it is important to preserve this aspect of rail travel wherever possible.
 In the case at hand, VIA was aware of Ms. Sikand's disability and her related needs in advance of travel. In this regard, the Agency notes that Ms. Sikand's reservation record reflects her use of a wheelchair as well as the assignment of a wheelchair tie-down for her use during both portions of her trip. Despite these arrangements, during Ms. Sikand's travel on December 2, 2003, VIA failed to provide her with a wheelchair tie-down. Instead, VIA provided Ms. Sikand with the option of either travelling from Toronto to Ottawa in a taxi or transferring from her wheelchair to a regular seat. Although Ms. Sikand chose the latter option, as she believed it was the most acceptable of the two options, she indicated that neither option was adequate. In fact, when Ms. Sikand transferred to a regular seat, she was left without the prescribed, moulded seating that her wheelchair provides for her. Furthermore, when Ms. Sikand transferred from her wheelchair she was left without her only means of independent mobility.
 In light of the foregoing, the Agency finds that the unavailability of a reserved tie-down constituted an obstacle to Ms. Sikand's mobility.
Lack of access to the washroom
 The Agency notes that Ms. Sikand and VIA presented different versions of events regarding whether Ms. Sikand was asked by VIA personnel if she needed to use the washroom. On one hand, Ms. Sikand submitted that no VIA personnel asked her about her safety and comfort during the trip, nor did they ask her if she needed to use the washroom. VIA, on the other hand, stated that the Service Manager on Train No. 48 periodically asked Ms. Sikand and her attendant if they were comfortable and secure. VIA further submitted that the Service Manager also asked Ms. Sikand whether she needed to use the washroom, to which she responded in the negative.
 Ms. Sikand and VIA disagree on whether there was an exchange of information on board with respect to inquiries as to whether Ms. Sikand needed to use the washroom. The Agency is of the opinion that, had VIA personnel provided information about the assistance Ms. Sikand could expect to receive from VIA personnel to allow her to reach the washroom, in the event that she may have required such services; had VIA personnel informed Ms. Sikand of the availability of onboard wheelchairs or the assistance they could provide to transfer her to an onboard wheelchair, which the personnel could push to the door of the washroom; and had VIA personnel informed her that despite the wheelchair being stored approximately five feet from where the Sikand party was sitting, it could have been brought close enough to the seats to allow for a transfer, a discussion would likely have ensued regarding how Ms. Sikand would have been assisted to and from the washroom, thereby alleviating her concerns in this regard. Due to the lack of information in this regard, Ms. Sikand believed that she could not use the washroom for six hours, leading her to be concerned regarding her safety and dignity. The Agency concludes that it is unlikely that VIA personnel approached Ms. Sikand regarding this matter.
 In light of the foregoing, the Agency finds that the lack of access to the washroom constituted an obstacle to Ms. Sikand's mobility.
Meal distribution policy
 The Agency is of the opinion that persons with disabilities have the same rights as others to full participation in all aspects of society and equal access to services is critical to the ability of persons with disabilities to exercise that right.
 While every passenger travelling in a VIA-1 car receives a meal, persons located at the tie-down end of the car are offered meal options last as VIA's meal distribution policy dictated that meal options be offered starting with the passengers at the opposite end of the car. Unlike other passengers who have access to multiple seating choices, which can result in them being seated in various locations throughout the VIA-1 car, passengers who need or choose to remain in their wheelchair will always be located in the tie-down area. As such, unlike other passengers, persons located in the tie-down area will always be the last passengers to be offered meal options, if they receive options at all.
 The Agency notes that as a result of VIA's meal distribution policy and because Ms. Sikand was seated in the tie-down area on Train No. 48 which is located at the opposite end of the car, Ms. Sikand was not provided a choice of meals.
 In light of the foregoing, the Agency finds that VIA's meal distribution policy constituted an obstacle to Ms. Sikand's mobility.
Whether the obstacle was undue
 As with the term "obstacle", the term "undue" is not defined in the CTA in order to allow the Agency to exercise its discretion to eliminate undue obstacles in the federal transportation network. The word "undue" also lends itself to a broad meaning; it is commonly understood to mean exceeding or violating propriety or fitness; excessive; inordinate; disproportionate. As something may be found disproportionate or excessive in one case and not in another, the Agency must take into account the context in which the allegation that an obstacle is undue is made. Under this contextual approach, the Agency must strike a balance between the rights of passengers with disabilities to use the federal transportation network without encountering undue obstacles and the carriers' commercial and operational considerations and responsibilities. This interpretation is in keeping with the national transportation policy set out in section 5 of the CTA and more particularly in subparagraph 5(g)(ii) of the CTA where it is stated inter alia that conditions under which carriers or modes of transportation operate must, as far as is practicable, not constitute an undue obstacle to the mobility of persons with disabilities.
 While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federal transportation network to adapt their services, as far as is practicable, to the needs of persons with disabilities. There are however some impediments that have to be taken into consideration, such as security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact of adapting services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board in their own wheelchair, they may have to arrive at a terminal earlier to allow time for boarding, and they may have to wait for a longer period of time for deboarding assistance than persons without disabilities. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments that transportation service providers will encounter in trying to meet the needs of persons with disabilities. A balance has to be struck between the various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concept of undueness.
The case at hand
Unavailability of a reserved tie-down
 Having found that the unavailability of a reserved tie-down constitued an obstacle to Ms. Sikand's mobility, the Agency must now determine whether the obstacle was undue.
 The Agency recognizes that where particular services are requested in advance of travel, such as was the case with Ms. Sikand, there is an expectation that such services will be provided and when these services are not provided, a person with a disability can experience considerable stress and apprehension. Not only does the lack of such services impact on the trip in question, it also raises questions about the reliability of services to be provided on future trips.
 It is VIA's policy for corridor trains, as well as those that travel between Toronto and Ottawa, that even when there is more than one wheelchair tie-down per train in multiple VIA-1 cars, only one tie-down is to be made available for sale. However, two tie-downs were sold for Train No. 48 on December 2, 2003.
 Therefore, VIA did not follow its own policy in that it made the second tie-down available for sale. There is no evidence to indicate that the error at reservation was unavoidable and no explanation was provided as to why VIA's own policy could not have been followed. The Agency notes that VIA has, in fact, acknowledged its error in making two tie-downs available in the inventory and has indicated that it has implemented procedures to prevent its recurrence.
 While VIA offered the option of travelling from Toronto to Ottawa in a taxi, Ms. Sikand considered that this was not viable because of the condition of her back, the fact that her son was unable to travel the distance in a car and the cold weather.
 Based on the foregoing, the Agency finds that the unavailability of the reserved tie-down constituted an undue obstacle to Ms. Sikand's mobility.
Lack of access to the washroom
 Having found that the lack of access to the washroom constituted an obstacle to Ms. Sikand's mobility, the Agency must now determine whether the obstacle was undue.
 The Agency recognizes that information with respect to services that might be required by persons with disabilities often stems from an initial request for assistance by persons with disabilities. The Agency notes that this is reflected in the Code of Practice - Passenger Rail Car Accessibility and Terms and Conditions of Carriage by Rail of Persons with Disabilities (hereinafter the Rail Code):
(c) assisting, other than by carrying, with moving to and from a passenger rail car washroom, including assistance with using an on-board wheelchair;
 It can be argued that Ms. Sikand could have taken matters into her own hands by requesting services or asking questions about how she would be expected to get to the washroom. However, it is understandable that the failure by VIA personnel to provide information, combined with the manner in which the seats were rotated after she was transferred to a seat, led Ms. Sikand to believe that the only way out of the window seat was to have the seats rotated to face the other direction. Ms. Sikand knew that this would have required the removal of the fasteners that anchored the wheelchair of the person occupying the tie-down to the floor and that the person in the tie-down would have to move out of the tie-down area.
 Furthermore, Ms. Sikand initially reserved a wheelchair tie-down, which would have provided her with an independent means of access, thereby not requiring her to make any requests in advance for assistance to move to and from the washroom or for an onboard wheelchair. The Agency is of the opinion that it was the responsibility of VIA personnel, in this instance, to provide Ms. Sikand with the proper information with respect to access to the washroom. It was as a result of VIA's error at the point of reservation that Ms. Sikand had to occupy a regular seat such that the Agency is of the opinion that the onus should not have been on Ms. Sikand to request services that she had not expected to need. Rather, VIA personnel should have been more forthcoming about available services during its explanation of the options available for Ms. Sikand's trip when it was determined at the time of boarding that the tie-down was not available for Ms. Sikand's use.
 The loss of independent access resulting from Ms. Sikand's transfer to a regular seat should have prompted VIA personnel to explain the assistance that it could provide Ms. Sikand to allow her to access the washroom.
 Based on the foregoing, the Agency finds that the lack of access to the washroom constituted an undue obstacle to Ms. Sikand's mobility.
Meal distribution policy
 Having found that VIA's meal distribution policy constituted an obstacle to Ms. Sikand's mobility, the Agency must now determine whether the obstacle was undue.
 The Agency notes that VIA stated that neither the person who occupies the tie-down nor the attendant are entitled to receive a meal as coach passengers but that because they travel in the VIA-1 car, they both receive an additional benefit, namely a meal service, free of cost. However, only VIA-1 cars are equipped with wheelchair tie-downs in the train in question, leaving no option for the person using a wheelchair but to sit in the VIA-1 car, and as a result, he/she is the last person to receive a choice of menu items. As indicated, persons with disabilities have the same rights as others to full participation in all aspects of society and equal access to services is critical to the ability of persons with disabilities to exercise that right. Ms. Sikand did not receive equal access to meal options.
 The Agency is of the opinion that VIA's meal distribution policy, at the time of Ms. Sikand's travel, could have addressed the unequal treatment experienced by persons occupying the tie-down.
 In fact, the Agency notes that, subsequent to the filing of Ms. Sikand's application, VIA has indicated that it has amended its meal distribution policy so that all persons with disabilities will be able, during the reservation process, to select their meal of choice from an inventory of meals that will be available on the train on the day in question.
 It is, therefore, apparent that Ms. Sikand need not have been the last passenger in the VIA-1 car to be offered a meal with the result that she had no choice of menu items.
 In light of the foregoing, the Agency finds that VIA's meal distribution policy, at the time of Ms. Sikand's travel, constituted an undue obstacle to her mobility.
 The Agency is concerned with the unprofessional service Ms. Sikand reported receiving on board the train. However, the Agency notes VIA's comments that it expects all of its employees to provide courteous and efficient service to all its customers on a consistent basis. The Agency agrees with VIA's expectations and urges VIA to emphasize to its employees the requirement that they be sensitive to the needs of persons with disabilities.
 Based on the foregoing, the Agency finds that the unavailability of a reserved tie-down, the lack of access to the washroom and the carrier's meal distribution policy constituted undue obstacles to Ms. Sikand's mobility.
 Based on the above findings, the Agency hereby directs VIA to take the following measures within thirty (30) days from the date of issuance of this Decision:
- Provide the Agency with a copy of the procedures that have been put in place to ensure compliance with its policy on the number of tie-downs that are to be available for sale.
- Issue a bulletin to VIA personnel who may be required to interact with the public and/or to make decisions in respect of the carriage of persons with disabilities during the boarding process, emphasizing the importance of awareness and sensitivity to the particular needs of persons who will be without their mobility aids during the trip. This bulletin shall reinforce the importance of carrier personnel informing a passenger who uses a wheelchair and who will be transferring to a regular seat, of the services provided by VIA personnel to assist the person in moving to and from the washroom, as well as initiating such discussions in situations such as that experienced by Ms. Sikand in order to alleviate concerns the person might have with respect to his/her loss of independent access. The bulletin should also summarize the Agency's Decision in Ms. Sikand's case, without mentioning her name, as an example of the negative outcomes that may arise when VIA's personnel do not adequately inform a passenger with a disability of the available services to persons who transfer from their mobility aid to a regular seat. VIA is required to provide a copy of the bulletin to the Agency.
- Provide the Agency with a copy of the procedures that have been put in place to allow persons with disabilities to select their meal of choice at the point of reservation.
 Following a review of the required information, the Agency will determine whether further action is required.