Decision No. 146-AT-R-2013
APPLICATION by Matthew Wozenilek against VIA Rail Canada, Inc.
 Matthew Wozenilek 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 VIA Rail Canada, Inc. (VIA), alleging that VIA refused to permit him to board the train at its Guelph station, bound for Toronto, on June 12, 2012, because he uses an electric wheelchair.
 Did the inaccessibility to persons using wheelchairs of the entrance path and the fenced-in pathway leading to the temporary boarding platform at VIA’s Guelph station on June 12, 2012 constitute an undue obstacle to Mr. Wozenilek’s mobility and, if so, what corrective measures should be ordered, if any?
 When adjudicating an application pursuant to subsection 172(1) of the CTA, the Agency applies a three-step process to determine whether there is an undue obstacle to the mobility of a person with a disability. The Agency must determine whether:
- the person who is the subject of the application has a disability for the purposes of the CTA;
- an obstacle exists because the person was not provided with appropriate accommodation to address their disability-related needs. An obstacle is a rule, policy, practice, physical barrier, etc. that has the effect of denying equal access to services offered by the transportation service provider that are available to others; and,
- the obstacle is “undue.” An obstacle is undue unless the transportation service provider demonstrates that there are constraints that make the removal of the obstacle either unreasonable, impracticable or impossible, such that to provide any form of accommodation would cause the transportation service provider undue hardship. If the obstacle is found to be undue, the Agency may order corrective measures necessary to remove the undue obstacle.
FACTS, EVIDENCE AND SUBMISSIONS
 Mr. Wozenilek contacted VIA to purchase a ticket to travel from Guelph to Toronto for June 12, 2012. VIA advised Mr. Wozenilek that he would have to board the train at the Kitchener station because he uses an electric wheelchair. This would have added 80 minutes to his journey.
 Mr. Wozenilek submits that VIA’s instructions were only applicable to persons with “special needs” and that people who did not have “special needs” were able to board the train in Guelph. Mr. Wozenilek is of the opinion that VIA’s solution, to transport persons using wheelchairs to its Kitchener station, was unfair, did not provide an equal level of service provided to others, and was discriminatory to persons with disabilities.
 VIA states that the City of Guelph (City) owns the land upon which the VIA station is erected. VIA explains that the City leases part of the railway lands to VIA through a land-lease agreement, which contemplates the City’s development and use of the railway lands and the train station. VIA states that construction by the City of its intermodal transit terminal since April 2010 on the land adjacent to the VIA station affected VIA’s operations until June 2012. VIA points out that the land-lease agreement provides that, during construction by the City on the land that it owns, the City is responsible for all access issues.
 VIA submits that it cannot be held legally liable or operationally responsible for the construction by the City. VIA maintains that it cannot “legally participate in the break-down of the delays (October 2011 to June 2012) into discreet time increments to plan for the effects of the postponements in order to recalculate the impact on VIA’s station and its accessible services.”
 Mr. Wozenilek refers to the City’s submission where the City states that it fulfilled its obligations to maintain accessibility for all VIA rail passengers to the railway station and the railway platform during the construction. Mr. Wozenilek refers to the City’s statement that VIA approved the City’s plans for maintaining that accessibility. He alleges that VIA did not fulfill its obligation to ensure that there were no obstacles to passengers boarding the train from the railway platform.
 According to VIA, the ongoing road work and construction directly affected the accessibility of its services. VIA points out that a temporary boarding platform was built at the east end of the station and that a fenced-in pathway was put in place to be used in combination with the entrance path to the station to allow for passengers without wheelchairs to reach the temporary boarding platform. VIA submits that at the time Mr. Wozenilek wanted to travel, the entrance path and fenced-in pathway could not accommodate persons using wheelchairs.
 VIA submits that on June 12, 2012, the entrance path to the VIA station, which the applicant would have had to access in order to board the train, presented hazardous obstacles for customers using wheelchairs. According to VIA, the entrance path was unpaved, covered by uneven gravel and loose stones which resulted in a rough, bumpy surface. VIA asserts that its primary focus in closing the entrance path was its concern over a wheelchair’s general stability over a constantly changing surface while being pushed or propelled over rutted gravel. VIA adds that destabilization of the wheelchair could result in it becoming stuck in the gravel or tipping on an uneven terrain.
 VIA maintains that the fenced-in pathway also presented dangerous obstacles to a person using a wheelchair because the pathway’s width was constantly changing as construction progressed and metal ground supports for the fence protruded directly into the pathway and were hazardous obstacles to a person using a wheelchair.
 In VIA’s view, the risk of injury was significant and as a result, it imposed legitimate safety requirements based on “real risks, not on speculation, stereotypes or generalizations about individuals with disabilities.” VIA maintains that it took into account the nature, duration, and severity of the risk, the probability that the potential injury would occur and concluded that the only practice to ensure the safety of passengers using wheelchairs and of VIA employees assisting such customers was to provide alternative transportation from an accessible station that was safe.
 VIA states that its safety protocol to evaluate hazards according to several factors, its “Hazard Assessment and Risk Control Strategies” (HARCS) could not be employed to evaluate whether it would be safe to use a wheelchair to enter the station with any reliability. VIA explains that a HARCS study requires a minimum of operational stability to accurately predict hazards and that, because of the ongoing construction, the conditions that the HARCS would measure would be constantly changing, such that results from a review done on a particular day could be unreliable at a later date. VIA asserts that it would not have had any practical ability to predict or monitor the construction progress by the City and its impact on accessibility.
 According to VIA, it conducted a site visit on June 5, 2012 and on June 8, 2012, it complained to the City about the length of time the entrance path was under construction. VIA submits that the City agreed to reconstruct the entrance path and pave the area in front of the station. According to VIA, the City advised that the work was completed on June 14, 2012 and that VIA was notified of its completion on June 20, 2012. VIA points out that it completed an on-site view of a newly paved walkway, platform and curbs on June 27, 2012 at which time it determined that all required platform paving and curb work was in place for the safe handling of wheelchairs. VIA then advised its telephone sales agents that the Guelph station was accessible for persons with reduced mobility as of June 29, 2012.
 VIA states that it was prepared to accommodate persons using wheelchairs by offering alternative transportation at VIA’s expense to the nearest accessible station that was safe. VIA explains that its staff were instructed to review special service requests (SSRs) in the reservation system and arrange for transportation to the Kitchener station as needed. VIA expresses the opinion that “although not an undue obstacle, the requirement to go to the nearest train station (which might be in the opposite direction of the destination) could constitute a possible obstacle.” VIA maintains that its alternative transportation policy did not constitute an undue obstacle to Mr. Wozenilek’s mobility.
 VIA points out that its alternative transportation policy has since been amended such that a person will have the option of being transported at VIA’s expense to the nearest station equipped with a lift or high platform in either direction along the route. VIA’s new policy indicates that when a customer using a wheelchair wishes to entrain or detrain at a station without a lift or high level platform, VIA will provide alternate accessible transportation, at its expense, to the nearest station in either direction along the route that has a lift or high platform, for all corridor stations without a lift or high level platform.
ANALYSIS AND DETERMINATIONS
 In determining whether there is an obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first establish whether the application was filed by, or on behalf of, a person with a disability. In this case, Mr. Wozenilek is a person who uses an electric wheelchair as a mobility aid. As such, Mr. Wozenilek is a person with a disability for the purpose of applying the accessibility provisions of the CTA.
OBSTACLE AND UNDUE OBSTACLE DETERMINATIONS
 The Agency views an obstacle in the federal transportation network as being a rule, policy, practice, physical barrier, etc. which is either:
- direct, i.e., applies to a person with a disability; or
- indirect, i.e., while the same for everyone, has the result of withholding a benefit from a person with a disability; and
- denies a person with a disability equal access to services that are available to others such that accommodation is required from the service provider.
 For an obstacle to exist, the problem must be related to the person’s disability. For example, a customer service issue does not become an obstacle merely because it is experienced by a person with a disability.
 Service providers have a duty to accommodate persons with disabilities. A person with a disability will face an obstacle to their mobility if they demonstrate that they need – and were not provided with – accommodation, thereby being denied equal access to services available to others in the federal transportation network.
 A service or measure that is required to meet a person’s disability-related needs is referred to as “appropriate accommodation.” If it is determined that the person was provided with appropriate accommodation, it cannot be said that they have encountered an obstacle. It is the applicant’s responsibility to provide sufficiently persuasive evidence to establish their need for accommodation and to prove that this need was not met. The standard of evidence that applies to this burden of proof is the balance of probabilities.
 An obstacle is undue unless the service provider can justify its existence. Once the Agency has determined that a person with a disability has encountered an obstacle, the service provider may either:
- provide the appropriate accommodation or offer an alternative that is equally responsive in meeting the disability-related needs of the person. In such a case, the Agency will determine what corrective measures are required to ensure that the appropriate accommodation is provided; or,
- justify the existence of the obstacle by demonstrating that it can neither provide the appropriate accommodation nor provide any other form of accommodation without incurring undue hardship. The burden of proof is on the service provider to demonstrate that providing the accommodation would result in undue hardship. If it fails to do so, the Agency will find that the obstacle is undue and order corrective measures to ensure that accommodation is provided.
 In situations where the service provider is of the view that it cannot provide the accommodation that is responsive to the needs of the person with a disability, it must justify the existence of the obstacle.
 The test that a service provider must meet in order to justify the existence of an obstacle consists of three elements. The service provider must demonstrate that:
- the source of the obstacle is rationally connected to the provision of the transportation service;
- the source of the obstacle was adopted based on an honest and good faith belief that it was necessary in order to provide the transportation service; and,
- it cannot provide any form of accommodation without incurring undue hardship.
 It is the responsibility of the service provider to provide sufficiently persuasive evidence to establish on a balance of probabilities that the obstacle is justified (i.e., that to provide any form of accommodation would result in undue hardship.)
 If a service provider meets this burden of proof, the Agency will find that the obstacle is not undue and will not order any corrective measures.
 The Agency finds that the appropriate accommodation that would have been required to meet Mr. Wozenilek’s disability-related needs during the construction at VIA’s Guelph station was a route to the temporary boarding platform that was accessible to persons using electric wheelchairs.
 As neither the entrance path nor the fenced-in pathway to the temporary boarding platform at VIA’s Guelph station were accessible for persons using wheelchairs on June 12, 2012, the Agency finds that Mr. Wozenilek encountered an obstacle to his mobility.
 The Agency is of the opinion that VIA, as a transportation service provider, has the responsibility to ensure that its station facilities and related property (whether leased or owned) including the routes to its boarding platforms, are safe for public use. The Agency acknowledges that VIA identified legitimate safety concerns regarding the use of the entrance path and the fenced-in pathway by persons using wheelchairs at its Guelph station but that it was unable to directly undertake any work needed to address these because this was not under its control.
 In this case, the construction project was subject to considerable delays and ad hoc changes to the project design and the sequence of work. Application of VIA’s risk management methodology, which requires a significant level of operational stability, was not possible, given the continuous revision of the project.
 However, the Agency is of the opinion that VIA exercised due diligence by conducting site visits to evaluate the safety of the entrance path and fenced-in pathway, including a site visit seven days prior to the date Mr. Wozenilek wanted to travel. During the site visit on June 5, VIA identified safety concerns, which it discussed with the City. The City agreed to reconstruct the entrance path to ensure that it was safe and allowed access. That work was completed two days after Mr. Wozenilek’s planned travel.
 The Agency accepts VIA’s need to conduct its own evaluation of the safety of the entrance path and the fenced-in pathway for use by persons using wheelchairs as well as its obligation to ensure that the work done to improve the entrance path would satisfy its safety requirements. The Agency finds, on a balance of probabilities, that VIA acted properly in this case and demonstrated an appropriate level of caution when it concluded that it would be unsafe to allow persons using wheelchairs, including Mr. Wozenilek, to access the platform via the entrance path and the fenced-in pathway.
 In the period between the identification of the safety issue and the City resolving it, it was not possible for VIA to provide appropriate accommodation, including on the date that Mr. Wozenilek wanted to travel. VIA considered other forms of accommodation and concluded that the only safe option for accommodation was to provide free transportation to the nearest accessible station. VIA has since modified its policy to provide free transportation to the nearest accessible station in either direction which, in this case, will meet its duty to accommodate.
 The Agency finds that VIA has established that it encountered undue hardship that prevented it from providing the appropriate accommodation to Mr. Wozenilek on June 12, 2012. Therefore, the Agency finds that the obstacle is not undue and therefore, no corrective measures are required.