Decision No. 120-AT-MV-2011

April 14, 2011

April 14, 2011

APPLICATION by Robert Paynter against the City of Ottawa and OC Transpo.

File No. U3570/09-40

INTRODUCTION

[1] Robert Paynter filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) against the City of Ottawa and OC Transpo (respondent) with respect to the fare charged for Para Transpo service from his residence, which is higher than the fare charged to others who use this service in other areas.

[2] Mr. Paynter believes that the fares charged are discriminatory and he seeks remedies regarding the application of zones and fares charged, as well as reimbursement and compensation.

ISSUE

[3] Does the "zone fare system" used by OC Transpo for its Para Transpo service constitute an undue obstacle to the mobility of Mr. Paynter?

[4] The Agency finds no prima facie case for the existence of an obstacle to Mr. Paynter's mobility. As the burden to establish a prima facie case lies with the applicant, and this has not been met by Mr. Paynter, the Agency dismisses the application.

THE LAW

[5] The Agency's legislative mandate regarding persons with disabilities is found in Part V of the CTA, which contains a regulation-making authority [subsection 170(1)] and a complaint adjudication authority [subsection 172(1)], both for the express purpose of eliminating undue obstacles to the mobility of persons with disabilities in the federal transportation network. The scope of the Agency's jurisdiction to eliminate undue obstacles, through both regulation and complaint adjudication, is partially defined by an inclusive list of matters contained in subsection 170(1), which is incorporated by reference into subsection 172(1).

[6] The Supreme Court of Canada, in Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650, 2007 SSC 15 (CCD-VIA) provided significant direction to the Agency on the execution of this mandate, including the confirmation that Part V of the CTA is human rights legislation. This means that identifying and remedying undue obstacles for persons with disabilities in the transportation context must be done in a manner that is consistent with the approach for identifying and remedying discrimination under human rights law.

PRELIMINARY MATTER

[7] Prior to proceeding, the Agency must first consider whether it has jurisdiction in this matter.

[8] The test to determine the jurisdiction for an administrative tribunal was established in Cuddy Chicks Ltd v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5 (Cuddy Chicks). The test states that an administrative tribunal has jurisdiction to hear a matter when it has jurisdiction over (1) the parties, (2) the subject matter, and (3) the remedy. Normally, a jurisdiction decision can be made at the outset of a case.

[9] In this case, the first two elements of the test established in Cuddy Chicks have been met.

[10] The Agency has exercised jurisdiction over OC Transpo in the past, as it is an interprovincial transportation service provider and, therefore, is a federal undertaking.

[11] As Para Transpo is administered by OC Transpo and is an interprovincial transportation service provider, the Agency also has jurisdiction with respect to Para Transpo service.

[12] Mr. Paynter has Becker's Muscular Dystrophy and uses a power wheelchair. This has not been contested by the respondent. Accordingly, the Agency finds that Mr. Paynter is a person with a disability for the purposes of Part V of the CTA.

[13] In light of the above, the Agency has jurisdiction over the parties.

[14] Section 172 of the CTA gives the Agency the power to inquire into a matter to determine whether there is an undue obstacle to the mobility of persons with disabilities. As this application relates to the provision by OC Transpo, including Para Transpo, of transportation services in the federal transportation network to persons with disabilities, the Agency has jurisdiction over the subject matter.

[15] However, in assessing the third part of the jurisdiction test, the issue is not as clear and it is therefore important to refer to the approach followed by the Agency with respect to cases under Part V of the CTA, namely an approach consistent with the Supreme Court direction in CCD‑VIA, which consists of three phases. First, an applicant must demonstrate that they are a person with a disability; second, that they faced an obstacle; and, if these answers are in the affirmative, the transportation service provider must establish that the obstacle is not undue.

[16] As noted above, the Agency has determined that Mr. Paynter is a person with a disability for the purposes of Part V of the CTA.

[17] At the obstacle phase, the Agency considers what constitutes appropriate accommodation in the circumstances of the case.

[18] The matter of appropriate accommodation, or from a jurisdictional point of view the remedy required to provide appropriate accommodation, is not always clear until this phase, unless it can be established that the only remedy sought is outside the jurisdiction of the Agency to grant. That was the case in Vishnuprasad Barot v. Emirates (Decision No. 342-AT-A-2010) where the applicant insisted on a remedy that was not within the Agency's powers to grant.

[19] In this case, the remedy issue is clouded by the fact that some potential solutions requested by Mr. Paynter may lie entirely within the domain of provincial jurisdiction. The respondent has raised this specific issue and challenged the Agency's jurisdiction on the basis that it cannot order a municipal government to change its legislation, which is an indirect way of stating that the remedy sought by Mr. Paynter lies only within provincial jurisdiction.

[20] It is nevertheless clear to the Agency that some potential solutions could lie within the power of the Agency to grant. The Interpretation Act, R.S.C., 1985, c. I-21 states that "every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation that best ensures the attainment of its objects." It follows, in this case, in the context of the mandate given to the Agency by the CTA, that the Agency should consider the remedies available to it before making a final determination on jurisdiction.

[21] The balance of convenience also favours this interpretation. The potential harm to Mr. Paynter, who might be denied a remedy in law to which he is entitled, clearly outweighs the minimal harm to the respondent of making submissions on the merits of the application until the matter of remedy can be determined. In the rare cases where a potential jurisdictional issue cannot be assessed without pleadings on the merits of the substantive issue before it, the Agency finds it reasonable to proceed until the matter can be determined, even if it means considering a determination on disability, obstacle and appropriate accommodation in the absence of clear authority over remedy. This is one of those rare cases.

[22] Having considered the specific situation, as more particularly set out below, the Agency finds no prima facie case to have been presented by Mr. Paynter for the existence of an obstacle. As this burden must be met by Mr. Paynter as a preliminary requirement for the Agency's consideration of appropriate accommodation, it is not necessary for the Agency to rule on the issue of remedy or to otherwise make a determination on jurisdiction.

BACKGROUND

[23] OC Transpo is a department of the City of Ottawa (City). Para Transpo is defined in the municipal By-law No. 2009-4009 as "a customized door to door public transportation service for persons with a disability which restricts them from using conventional public transportation services". Para Transpo delivers its service in accordance with policies and funding levels established by the City of Ottawa City Council (City Council) and is administered by OC Transpo.

[24] City Council has established the following four transit areas for the purposes of transit service delivery and property taxes:

1. Urban Transit Area (UTA)
2. Town Transit Area (TTA)
3. Rural Transit Area A (RTA-A)
4. Rural Transit Area B (RTA-B)

[25] City Council has also put in place a zone fare system for Para Transpo services, comprising four zones. Zones 1 and 2 are subdivided into smaller zones. Mr. Paynter's residence is in Zone 2-H in the RTA-A.

[26] Fares for trips between rural areas and urban areas are fixed but vary by distance, from $3.25 to$18.25, while fares for trips between rural areas are composed of a base rate plus an additional rate per kilometre. For instance, fares between Zone 2 and Zone 3 are $4.40 plus$0.46/km, while fares between Zone 4 and other rural areas are $7.21 plus$0.46/km. The fare between the RTA-A and UTA is $9.50. [27] When a number of persons book a Para Transpo trip as a group, the rural fare is charged once and the other persons pay the regular urban fare. Also, each person who uses Para Transpo service is allowed to invite a companion, who need not be a Para Transpo registrant. [28] The costs for trips entirely within the UTA are as follows: •$4.25 for trips before 9:00 a.m. Monday to Friday, and
• $3.25 for trips at all other times of the week. [29] Mr. Paynter pays a$9.50 fare for one-way trips from his residence in the RTA-A, Zone 2-H, to the UTA, which, as he points out, is three times the normal fare, the lowest of which is $3.25 for trips within the UTA. Mr. Paynter is of the view that the$9.50 charge is unfair for the following reasons:

• people living further from the downtown core than Mr. Paynter are paying the normal fare for Para Transpo service;

This case

[46] To determine whether a prima facie case of obstacle has been made, the Agency must consider whether Mr. Paynter is unable to benefit equally from services available to others because of a distinction or exclusion based on disability, which has the effect of imposing a burden upon him or withholding a benefit. The onus is on Mr. Paynter to demonstrate that there is a differential treatment on the basis of his disability.

[47] Both parties agree that Para Transpo service and OC Transpo regular service are not directly comparable in function, operation or purpose. One is an on-demand, specialized and highly subsidized door-to-door service that exists specifically to address the needs of persons with disabilities. The other is a non-specialized scheduled network service, also subsidized, which is offered to the general public, including person with disabilities.

[48] Where the parties disagree is that Mr. Paynter, in essence, argues that the services are comparable in the sense that Para Transpo is a substitute for regular OC Transpo service and should, therefore, have pricing principles that are similar. The Agency does not agree that this is the case. Para Transpo is not a substitute service for OC Transpo. Para Transpo is a separate service that is specifically designed to meet the needs of persons with disabilities and it has its own pricing scheme and operating criteria.

[49] There is no demonstrated basis for comparing the pricing schemes of OC Transpo and Para Transpo beyond the observation that both provide transportation and both are subsidized. With respect to these services, no distinction exists except that Mr. Paynter, like other persons with disabilities, is eligible to use Para Transpo, a distinction that is to his benefit.

[50] Mr. Paynter further argues that zone systems are irrational and discriminatory. However, the Agency notes that zone systems are commonplace in public transportation and inherently lead to differences in treatment between persons in adjacent zones. While this inherent difference in treatment is inevitable, it does not mean that the zone structure is designed in a manner that excludes persons with disabilities or treats persons with disabilities differently.

[51] The specific complaint arises because Mr. Paynter moved into a house, partly on the understanding that a different zone system would be in place. As any zone structure, in any transportation system, may change from time to time, and as there is no evidence that the respondent designed the zones with the intent of charging Mr. Paynter more, there is no evidence that Mr. Paynter was actively discriminated against. It is possible that he was misinformed about the zone system. However, that is not a matter that the Agency can remedy.

[52] With respect to the argument that the structure of the zone system is inherently discriminatory, the respondent has explained that the scheme in place is a rationing mechanism related to cost recovery on a heavily subsidized system and that the zones are partly linked to taxation levels outside the urban area. While Mr. Paynter's Para Transpo costs may be higher, his tax rate is lower.

[53] The scheme of Para Transpo is designed specifically to provide transit service for persons with disabilities at a reasonable cost to the user, and, overall, it is successful in that purpose. By their nature, such schemes are designed to achieve an overall benefit, even if they are not perfect in respect to any one individual.

[54] The issue before the Agency is therefore whether the zone fare system used for Para Transpo service alone results in a distinction, exclusion or preference that creates a burden on Mr. Paynter and whether the distinction, exclusion or preference is based on his disability. As Para Transpo serves persons with disabilities, the only relevant comparator is to other persons with disabilities using Para Transpo service. Mr. Paynter would, therefore, have to establish, on a prima facie basis, that he is treated less favourably by reason of his disability when compared to another person with a disability using Para Transpo service.

[55] Mr. Paynter and other persons with disabilities who reside in Zone 2H pay higher fares for Para Transpo service than persons with disabilities who reside in other zones. In this sense, they are treated differently. However, the evidence, which is not contested by the parties, demonstrates that the fare levels paid for Para Transpo service are determined solely by the zone in which a person lives and the system results in the same charges for all users living within any particular zone. There is no evidence that the various fare levels for Para Transpo service are based on or related to disability.

[56] Therefore, the Agency finds that Mr. Paynter has failed to establish a prima facie case that the Para Transpo zone fare system constitutes an obstacle to his mobility that is related to his disability.

[57] As the Agency has determined that the distinction between the fares for Para Transpo service in the various zones is not related to disability, the Agency will not address the rationale for the establishment of the fare levels.

COSTS

[58] Mr. Paynter has requested costs in this matter.

[59] The Agency has complete discretion regarding an order of costs and each application is decided on its own merits. As a general rule, costs are not awarded and the Agency's practice has been to award these only in special or exceptional circumstances. In making its determination in a given case, the Agency considers a combination of factors such as the nature of the application, the length and complexity of the proceeding, whether the Agency held an oral hearing, whether parties have acted efficiently and in good faith or if a party has incurred extraordinary costs to prepare and defend its application.

[60] In this case, the Agency is of the opinion that no such special or exceptional circumstances apply and, accordingly, no costs are awarded.

CONCLUSION

[61] The Agency dismisses the application.

Members

• Geoffrey C. Hare