Decision No. 187-AT-A-2005

March 31, 2005

March 31, 2005

APPLICATIONS by Gary Malkowski pursuant to subsection 172(1) of the Canada Transportation Act, S.C. 1996, c. 10, concerning the level of TTY (telephone-teletype used by persons with a hearing impairment) pay telephone service and related signage at the Toronto-Lester B. Pearson International Airport on March 25 and September 24, 1999.

File No. U3570/99-39


APPLICATIONS

[1] On August 24, 1999 and October 4, 1999 respectively, Gary Malkowski filed with the Canadian Transportation Agency (hereinafter the Agency) applications concerning the level of TTY service and related signage at the Toronto-Lester B. Pearson International Airport (hereinafter the Toronto airport).

[2] The Greater Toronto Airports Authority (hereinafter the GTAA), the administrator of the Toronto airport, filed its answer to the first application on September 13, 1999 and on September 30, 1999, Mr. Malkowski filed his reply.

[3] In a letter dated November 22, 1999, the GTAA requested an extension to December 3, 1999 to file an answer to the second application in order to provide a final report on the GTAA's review of the sufficiency of TTYs and the adequacy of accompanying signage at the Toronto airport. The Agency granted the requested extension and the GTAA filed its answer to the second application on December 3, 1999. Mr. Malkowski did not reply.

PRELIMINARY MATTERS

[4] With respect to the first application, Mr. Malkowski's reply was received after the deadline prescribed by the Canadian Transportation Agency General Rules, SOR/2005-35; however, the Agency, pursuant to section 4 of these Rules, accepts the submission as being relevant and necessary to its consideration of the matter.

[5] Furthermore, while Mr. Malkowski filed two separate applications regarding incidents that occurred on two separate dates in 1999, the Agency is of the opinion that the applications are similar in nature in that they both involve the level of TTY service and related signage at the Toronto airport and, as such, the Agency has determined that it is appropriate to consider the two applications together and to issue one decision regarding the issues raised in the two applications.

ISSUES

[6] The issues to be addressed are whether the absence of a TTY in the secure departure area in Terminal 2 of the Toronto airport on March 25, 1999, and the absence of a TTY in each public telephone area as well as the lack of both appropriate TTY-related signage and assistance to locate TTYs in Terminal 2 of the Toronto airport on September 24, 1999 constituted undue obstacles to Mr. Malkowski and if so, what corrective measures should be taken.

FACTS

[7] Mr. Malkowski is deaf and requires the use of a TTY to communicate by telephone.

[8] He travelled from Toronto, Ontario to Winnipeg, Manitoba, on March 25, 1999 and from Toronto to Saskatoon, Saskatchewan on September 24, 1999. On both occasions, he departed from Terminal 2 of the Toronto airport.

[9] On March 25, 1999, Mr. Malkowski could not locate a TTY in the secure departure area of Terminal 2. On that date, there were only two TTYs available in Terminal 2: one was located at the bank of telephones situated in the middle of the general public area on the departure level; and another at the information counter situated in the general public area on the arrival level. There was no TTY in the secure departure area in Terminal 2.

[10] On September 24, 1999, Mr. Malkowski was unable to obtain assistance in locating TTYs in Terminal 2 and there were no clear signs in the terminal directing passengers to the TTYs in the departure area. In addition, there were no TTYs in each public telephone area. While the GTAA had recently installed a number of new TTYs in Terminal 2 of the Toronto airport and, while there was a TTY available in the secure departure area, the signage replacement program had not yet been completed.

POSITIONS OF THE PARTIES

[11] Mr. Malkowski submits that TTYs are communication supports necessary to provide equitable and accessible service to passengers who are deaf or hard of hearing and he asks that the Agency investigate the lack of TTYs at the Toronto airport.

[12] Mr. Malkowski expresses his concern that the absence of a TTY in the public telephone area located in the secure departure lounge area on March 25, 1999 constitutes a clear violation of the Supreme Court of Canada's Eldridge Decision. (Eldridge v. B.C. (A.G.) [1997] 3 R.C.S. 624). Mr. Malkowski points out that the Court ruled in that Decision that deaf Canadians are entitled to equal access to and equal benefit from all government-funded services and programs.

[13] Mr. Malkowski requests that there be a least one or two TTYs in each public telephone area on both the departure and arrival levels in each of the terminals at the Toronto airport.

[14] The GTAA indicates, in its answer to the first application, that since April 29, 1999, 16 additional TTYs have been installed at the Toronto airport, bringing the total to 23, including TTYs within the secure departure area in Terminal 2. Further, the GTAA submits that it is in the process of completing the installation of signage for the new TTYs.

[15] Mr. Malkowski submits that on September 24, 1999, there were no clear signs in Terminal 2 directing passengers to the TTYs in the secure departure area and that he and two other deaf passengers were unable to obtain assistance in locating TTYs in that terminal. He also notes that there were no TTYs at each public telephone area on that day.

[16] The GTAA submits that flag type signs projecting from the walls and additional TTY pictographs to overhead directional signs have been added in Terminal 2 in order to address Mr. Malkowski's concerns regarding inadequate signage. On December 3, 1999, the GTAA submitted to the Agency the final report of its review of the sufficiency of TTYs and the adequacy of the accompanying signage at the Toronto airport, which sets out the GTAA's plans to install more TTYs, including three in Terminal 2, as well as more signage at the Toronto airport. The GTAA indicates that it expects to have the new signage in place by the end of 1999 and the new TTYs installed by February 28, 2000.

OTHER DEVELOPMENTS

[17] At the time when Mr. Malkowski filed the above-noted applications, the GTAA was in the process of complying with a previous decision of the Agency regarding the level of TTY service at the Toronto airport.

[18] Specifically, upon consideration of an application filed by Henry Vlug, the Agency, on March 5, 1999, issued Decision No. 86-AT-A-1999 in which it determined, among other matters, that, in view of the size and configuration of each of the three terminals of the Toronto airport and the nature of the operations conducted in each one, a minimum number of TTYs was required to ensure access to TTYs in each of the separate public and secure areas of the terminals. In addition, the Agency noted that accessibility features such as TTYs should be properly displayed to ensure that they may be located quickly and easily by travellers requiring the use of this service and found that the lack of appropriate signage to indicate the location of the existing TTYs constituted an undue obstacle to Mr. Vlug's mobility.

[19] The Agency, in its Decision No. LET-AT-A-41-2000 dated February 7, 2000, adjourned the present proceedings pending the outcome of its monitoring activities with respect to Decision No. 86-AT-A-1999, in view of the fact that the GTAA had been required to take specific corrective measures, including the installation of TTYs and related signage in strategic locations in Terminal 2 of the Toronto airport.

[20] On August 8, 2000, the Agency issued Decision No. 518-AT-A-2000 wherein it reviewed the measures taken by the GTAA in order to determine if the requirements of Decision No. 86-AT-A-1999 had been met. The Agency concluded that the measures taken by the GTAA, namely the installation of additional TTYs throughout the Toronto airport, in both the secure and public areas of all three terminals, the upgrade to existing signage, as well as other proposed improvements, should help to eliminate undue obstacles to the mobility of persons who are deaf or hard of hearing. The Agency noted that with the installation of additional TTYs throughout the Toronto airport, persons who are deaf or hard of hearing would now have access to 29 TTYs, 24 hours a day and this number would be further increased with the proposed addition of approximately 10 TTYs. The Agency also noted that the GTAA had, on its own initiative, reviewed the installations at the Toronto airport and identified other areas where TTYs could be installed. With respect to signage, the Agency found that the GTAA had taken the appropriate measures with the implementation of its signage program which included the involvement of "special agents" who walk through the terminals at the Toronto Airport offering guidance and assistance to travellers, and that these measures would improve the visibility and accessibility of the TTY service provided.

[21] Shortly before the issuance of Decision No. 518-AT-A-2000, the Agency began extensive consultations with carriers and terminals on a proposed code of practice to address communication barriers faced by travellers with disabilities using the federal transportation network. The consultations included the issue of what constituted an appropriate level of service in transportation terminals with respect to communications for the community of persons with hearing impairments, including the availability of TTYs in terminals. Given that the issue raised in Mr. Malkowski's applications was one of the issues being addressed in the development of the communications code of practice, the Agency considered it appropriate to defer its decision in these applications until such time as its work on the code of practice was finished. On June 3, 2004, the Agency released a Communications Code of Practice, Removing Communication Barriers for Travellers with Disabilities (hereinafter the Code of Practice). The Code of Practice reflects the Agency's views on the importance of TTYs to the accessibility of travel by persons with disabilities and the general principle that persons with disabilities should have equal access to transportation services. Specific to the issue of TTY service, the Code of Practice provides that:

Where public telephones are provided, terminal operators are to ensure that there is an adequate number of accessible public telephones that allow a person who uses a wheelchair, is blind or visually impaired, has a speech impairment, or is Deaf, deafened or hard of hearing, to use the machine independently. At least one accessible public telephone (including a TTY or other alternative communication system) is to be provided in each separate unrestricted and restricted departure and arrival area, 24-hours a day. At a minimum, accessible public phones and TTYs (or other alternative communication systems) are to be located in each of the following areas if public telephones are provided: arrival and departure areas, boarding gate or track areas, baggage claim areas and corridors leading to each of these areas.

Accessible telephones and TTYs are to be clearly identified using the international symbol of access or the identification symbol for TTYs. Signs providing direction to public telephones are also to provide direction to the nearest TTY or alternative communication system using the appropriate symbol. Also, where a bank of regular telephones is not equipped with an alternative communication system, directional signage indicating the location of the nearest device is to be placed adjacent to this bank, using the appropriate symbol.

Terminal operators are to ensure alternative communications systems are properly maintained and kept in good working order.

[22] Following the release of the Code of Practice, the Agency resumed its investigation of several applications involving the issue of TTY communications, including the applications filed by Mr. Malkowski.

ANALYSIS AND FINDINGS

[23] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.

[24] An application must be filed by a person with a disability or on behalf of a person with a disability. Mr. Malkowski is deaf and requires the use of a TTY to communicate by telephone and as such, is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

[25] 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

[26] 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.

[27] 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

[28] The Agency is of the opinion that the ability to communicate independently by telephone is essential for all travellers, including persons who are deaf or hard of hearing, and, as such, access to TTYs is required. The Agency notes that, at the time of Mr. Malkowski's travel from Toronto to Winnipeg, there were only two TTYs available in Terminal 2, both of which were located in the general public area, and that there were no TTYs located in the secure departure lounge area in Terminal 2. As the Agency previously determined in Decision No. 86-AT-A-1999, TTYs are required "in each separate secure area located on the Departure and Arrival Levels of Terminal 2". Accordingly, the Agency finds that the lack of a TTY in the secure departure lounge of Terminal 2 on March 25, 1999 constituted an obstacle to Mr. Malkowski's mobility and that of people who are deaf or hard of hearing in general.

[29] Furthermore, as set out in Decision No. 86-AT-A-1999, the Agency is of the opinion that the TTYs should be properly indicated by appropriate signage to ensure they are quickly and easily located by travellers requiring the use of this service. Although the GTAA had indicated that, by September 7, 1999, it had installed pictograms above each new TTY, the Agency also notes the GTAA's subsequent submissions that flag type signs and additional pictographs to overhead directional signs were later added to address Mr. Malkowski's concerns and that this was simply the first stage of an extensive signage replacement program. As noted earlier, with respect to signage, the Agency found that the GTAA had taken the appropriate measures with the implementation of its signage program which included the involvement of "special agents" who walk through the terminals at the Toronto airport offering guidance and assistance to travellers, and that these measures would improve the visibility and accessibility of the TTY service provided. As such, the Agency accepts Mr. Malkowski's evidence that, on the day in question, he was unable to locate a TTY in Terminal 2. In view of this, the Agency finds that the lack of appropriate TTY-related signage to locate TTYs in Terminal 2 on September 24, 1999 constituted an obstacle to Mr. Malkowski's mobility and that of persons who are deaf or hard of hearing in general.

Whether the obstacle was undue

[30] 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.

[31] 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

[32] Having found that the lack of a TTY in the secure departure lounge of Terminal 2 on March 25, 1999 and the lack of appropriate TTY-related signage to locate TTYs in Terminal 2 on September 24, 1999 constituted an obstacle to Mr. Malkowski's mobility and that of persons who are deaf and hard of hearing in general, the Agency must now determine whether the obstacle was undue.

[33] The Agency notes that, on March 25, 1999, there were two TTYs installed in Terminal 2, neither of which was located in the secure departure area. The Agency is of the opinion that in order to determine if the level of accessibility of any facility or service created an undue obstacle to the mobility of persons with disabilities, the size, configuration and nature of the operation or facility must be considered. As previously expressed in Decision No. 86-AT-A-1999, in considering these contextual factors, the Agency is of the opinion that the provision of only two TTYs in Terminal 2 is inadequate to meet the needs of persons with disabilities and, specifically, the Agency hereby determines that the lack of a TTY in the secure departure lounge area on March 25, 1999 constituted an undue obstacle to Mr. Malkowski's mobility and that of persons who are deaf or hard of hearing in general.

[34] Furthermore, while it is clear from the GTAA's submission dated September 13, 1999 that a TTY was available for Mr. Malkowski's use in the secure departure area of Terminal 2 on September 24, 1999, the absence of appropriate signage resulted in Mr. Malkowski being unable to locate and, thus, use the TTY. This serves to highlight the importance of appropriate signage to ensure that persons with disabilities have access to the services and facilities provided for their benefit in transportation terminals such as Terminal 2 of the Toronto airport. Accordingly, the Agency finds that the GTAA's failure to provide appropriate signage with respect to the TTYs that were installed in the secure departure area of Terminal 2 in June 1999 constituted an undue obstacle to Mr. Malkowski's mobility and that of persons who are deaf and hard of hearing in general.

[35] Mr. Malkowski submitted in both applications that the GTAA should be required to install one or two TTYs in each public telephone area on both the departure and arrival levels in each of the three terminals of the Toronto airport. The Agency takes note of the reference made by Mr. Malkowski to the Supreme Court of Canada's Eldridge Decision. The Agency, as an independent administrative tribunal with a mandate to remove undue obstacles from the federal transportation network, must analyze the positions submitted by the parties on a case by case basis to determine if there were undue obstacles to the mobility of persons with disabilities. In Decision No. 86-AT-A-1999, the Agency found that in view of the size, configuration and nature of the operations at the Toronto airport, TTYs were, as a minimum, required to be installed in each separate public and secure area of the departures and arrivals levels in all three airport terminals. While recognizing that this is a minimum requirement and that there is always room for improvement of services, the Agency does not find that the absence of a TTY pay telephone at each public telephone area constitutes an undue obstacle to the mobility of persons who are deaf or hard of hearing.

[36] Notwithstanding, the Agency notes that, pursuant to Telecom Decision CRTC 2004-47 dated July 15, 2004, the Canadian Radio-Television and Telecommunications Commission (hereinafter CRTC) found that Bell Canada, MTS Communications Inc., Saskatchewan Telecommunications, Télébec, Limited Partnership (collectively Bell Canada et al.), TELUS Communications Inc. and TELUS Communications (Québec) Inc. (collectively TCI) are unjustly discriminating against deaf customers in the provision of pay telephone service contrary to subsection 27(2) of the Telecommunications Act. The CRTC directed Bell Canada et al. and TCI to implement a TTY upgrade program for certain pay telephones. For all new pay telephone installations and pay telephone replacements in banks of pay telephones, the CRTC directed Bell Canada et al. and TCI to equip at least one of the pay telephones with a TTY. Depending upon the number of pay telephones installed at each location, the CRTC ordered that at least one TTY be installed by various deadlines ranging from December 31, 2006 to December 31, 2010. For all new pay telephone installations and pay telephone replacements in each community where there are no banks of pay telephones and at least one member of the community is registered with Bell Canada et al. or TCI as a TTY user, the CRTC directed Bell Canada et al. and TCI to equip at least one stand-alone individual pay telephone with a TTY unit immediately.

[37] In light of the foregoing, while the Agency finds that the lack of one or two TTYs in each public telephone area on both the departure and arrival levels in each of the three terminals does not constitute an undue obstacle to the mobility of persons who are deaf or hard of hearing, the Agency notes that, as a result of the CRTC decision, banks of pay telephones will, over time, be equipped with at least one TTY.

CONCLUSION

[38] While the Agency concludes that the lack of a TTY in the secure departure area in Terminal 2 on March 25, 1999 and the absence of appropriate signage to locate the available TTYs in Terminal 2 on September 24, 1999 constituted undue obstacles to Mr. Malkowski's mobility and that of persons who are deaf or hard of hearing in general, in light of the corrective measures implemented by the GTAA in response to Decision No. 86-AT-A-1999, which satisfied the Agency as set out in Decision No. 518-AT-A-2000, the Agency is of the opinion that these undue obstacles have already been remedied.

[39] As such, the Agency contemplates no further action in this matter.

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