Decision No. 160-MV-1994
April 15, 1994
APPLICATION by Persons United For Self-Help N.W.O. (P.U.S.H. Northwest) pursuant to subsection 63.3(1) of the National Transportation Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.).
File No. U 3570/93-9
On May 4, 1993, Persons United For Self-Help N.W.O. (P.U.S.H. Northwest) (hereinafter the applicant) applied to the National Transportation Agency (hereinafter the Agency), pursuant to subsection 63.3(1) of the National Transportation Act, 1987 (hereinafter the NTA, 1987).
The applicant filed the complaint on behalf of its members and travellers with disabilities. It complained, inter alia, that there was no wheelchair accessible taxi at the Thunder Bay Airport. Its other concern, at the time of the complaint, was that there may not be a wheelchair accessible taxi service in place until the re-tendering of the contract for the airport taxi concession. The applicant also raised the issue of the wheelchair accessibility of the taxi services and the number of accessible vehicles required to meet the demand for transportation at the airport.
The applicant is of the opinion that the present operating license conditions, with respect to the accessibility of taxi services at the Thunder Bay Airport, do not meet the needs of persons with disabilities and do not comply with the federal legislation on accessible ground transportation.
The applicant asked that the Agency investigate the circumstances and take corrective action, including the cancellation of the current airport taxi license agreement between Transport Canada and Lacey's Taxi Limited (hereinafter Lacey's), the current license holder, and the re-tendering of the contract for the airport taxi concession. The applicant suggests that another taxi operator, Oikonen's Taxi (hereinafter Oikonen's), is in a better position to provide adequate accessible taxi transportation at the Thunder Bay Airport in that this operator is acquiring a larger number of accessible vehicles and is more apt to meet the demand.
POSITION OF TRANSPORT CANADA
Transport Canada advised that it did not receive any complaint from persons with disabilities regarding taxi services at the Thunder Bay Airport until the issue was raised by the applicant at a conference on accessible ground transportation in September 1992. The service provided by Lacey's to persons with disabilities was therefore deemed to be to the satisfaction of the Airport Manager, thus in compliance with the conditions of the operating license.
Transport Canada further advised that, at the airport, persons with disabilities using a wheelchair are assisted by Lacey's staff to access the regular taxis and that the wheelchairs are accommodated in these vehicles. Transport Canada is of the opinion that this assistance and the alternatives in place accommodate accessible ground transportation at the Thunder Bay Airport and comply with the requirement of the operating license.
Transport Canada stated that accessible vehicles are not a requirement of the current airport taxi operating license. It added that factors other than the availability of accessible vehicles are also considered in the granting of the license. Transport Canada indicated that, although the demand had not yet been determined, it was monitoring the requests for accessible taxi transportation.
Although it stated that the availability of accessible taxi transportation will be made mandatory in the re-tendering of the contract for the airport taxi concession, Transport Canada is of the opinion that the number of accessible vehicles required to meet the demand is a business decision which should be left to the operator. In the present circumstances, Transport Canada advised that, where Lacey's cannot meet the demand, alternative accessible taxi transportation at the airport may be provided by Oikonen's or by HAGI Transit.
Transport Canada advised that, although the progress to achieve accessible taxi services may not appear as timely as expected, it was committed to accessible ground transportation at the Thunder Bay Airport and that it had taken a leading role in that respect.
POSITION OF LACEY'S
Lacey's advised that it had been investigating the economic viability of accessible taxi services for approximately two years but was not able to determine the level of demand for such services at the Thunder Bay Airport. Lacey's further advised that it was not able to obtain provincial funding and did not consider acquiring an accessible vehicle until it was in a position to take advantage of the financial assistance made available by the federal government under the National Strategy for the Integration of Persons with Disabilities (hereinafter the National Strategy). This situation contributed to the delay in initiating the process to acquire the accessible equipment.
Since the filing of the complaint, Lacey's has acquired one wheelchair accessible taxi with the assistance of federal funding. It is of the opinion that the vehicle will meet the demand and has advised that it would consider applying for financial assistance from the federal government for additional accessible vehicles, should the demand warrant. Lacey's indicated that it was committed to provide satisfactory services to all its customers and that it would not hesitate to ask Oikonen's to provide alternative transportation should it be occasionally unable to meet the demand of persons with disabilities.
Subsection 63.3(1) of the NTA, 1987 states that:
63.3(1) The Agency may, of its own motion or on application, inquire into a matter in relation to which a regulation could be made under subsection 63.1(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of disabled persons.
The Agency has been asked to determine if the lack of accessible taxi services at the Thunder Bay Airport constitutes an undue obstacle to the mobility of persons with disabilities. The Agency is further asked to take corrective measures.
Following its consideration of the evidence presented by the interested persons during the pleadings, the Agency is of the opinion that the lack of accessible taxi services at the Thunder Bay Airport, at the time of the complaint, constituted an undue obstacle to the mobility of persons with disabilities. The lack of such services prevented persons with disabilities from using a mode of public transportation normally offered to the public at airports serving communities the size of Thunder Bay. The obstacle is undue in that it could have been avoided in view of the present technology and equipment available and of the subsidy programs made available by the provincial and federal governments.
The Agency is of the opinion that the assistance provided by Lacey's to persons with disabilities to access its regular taxis and the storage of wheelchairs in the trunk of the vehicles do not constitute an accessible service to the users of wheelchairs. Regardless of their capability to transfer to a regular car seat, persons using a wheelchair should be able to remain with their mobility aid during ground transportation.
The problem with accessible taxi services at the Thunder Bay Airport was brought to the attention of the Thunder Bay Airport authorities in September 1992. Since then, funding made available to Lacey's by the federal government under the National Strategy provided the licensee with reasonable means to improve the accessibility of its services at the airport. As a result, and since the time of the complaint, Lacey's acquired a wheelchair accessible taxi which was put into service in November 1993.
The Agency has been advised that Oikonen's, which as of January 1994 operated four accessible taxis, is not prohibited from delivering and picking up traffic at the airport on request. The Agency notes that Lacey's will contact Oikonen's to provide alternative transportation when unable to meet the demand. Finally, the Agency is aware that HAGI Transit also provides, on request and as an additional alternative, accessible transportation at the Thunder Bay Airport.
Although it is recognized that the process involved in introducing accessible taxi transportation at the Thunder Bay Airport may have been delayed beyond expectations, the Agency found no evidence that the delay was caused by the negligence on the part of the airport authorities or the taxi operator.
With respect to the number of accessible taxis operated by Lacey's, the Agency is of the opinion that there is no evidence, at this time, to support a determination on the minimum number of accessible vehicles required to provide sufficient accessible taxi services at the Thunder Bay Airport. The Agency is, however, of the opinion that accessible taxi services must exist and be sufficient to meet the demand. The Agency further believes that all efforts must be made by the interested parties to ensure that the services are adequately advertised in the community.
The Agency finds that, at the time of the complaint, the lack of accessible taxi services at the Thunder Bay Airport constituted an undue obstacle to the mobility of persons with disabilities. The Agency is, however, of the opinion that the undue obstacle has been removed with the introduction of Lacey's accessible taxi and by the alternative accessible transportation provided by Oikonen's at the airport.
Subsection 63.3(3) of the NTA, 1987 states that:
63.3(3) On determining that there is an undue obstacle to the mobility of disabled persons, the Agency may order either or both of the taking of appropriate corrective measures or the payment of compensation for any expense incurred by a disabled person arising out of the undue obstacle.
Since, in this case, the undue obstacle has been removed, the Agency is of the view that corrective measures are not required at this time. The Agency, however, believes that the monitoring of accessible taxi transportation at the Thunder Bay Airport is necessary to establish if the present service meets the demand. Action should also be taken by the airport authorities, in conjunction with the taxi operators, to ensure that the accessible taxi services available at the Thunder Bay Airport are adequately advertised to the travelling public.
The Agency therefore requests that Lacey's and the Transport Canada authorities at the Thunder Bay Airport monitor the situation in order to ensure that the accessible taxi services provided at the airport are sufficient to meet the demand and make their findings available to the Agency upon request.
The Agency further requests that Transport Canada take the necessary measures, where feasible, to ensure that all accessible taxi services are adequately advertised in the public areas of the Thunder Bay Airport in order to make persons who need such transportation aware of the services provided, including measures such as direct telephone lines and the posting of visible signage in key locations.