Decision No. 33-AT-A-2019

June 21, 2019

INTERPRETIVE Decision – Applications made pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA).

 

File No.: 
GC-001-0005-005/003-01

SUMMARY

[1] This Decision informs passengers, transportation service providers, organizations representing persons with disabilities, and Canadians in general of the Agency’s approach to applications made pursuant to subsection 172(1) of the CTA.

THE LAW

[2] Section 5 of the CTA, entitled National Transportation Policy, states that the objectives of a national transportation system that “serve[s] the needs of its users, advance[s] the well-being of Canadians and enable[s] competitiveness and economic growth” are more likely to be achieved when, among other things, the system “is accessible without undue obstacle to the mobility of all persons” and is “accessible without barriers to persons with disabilities”.

[3] Part V of the CTA gives the Agency powers to protect and advance the fundamental right of persons with disabilities to an accessible federal transportation network, including:

  1. the authority to make regulations for the purpose of identifying or removing barriers or preventing new barriers—particularly barriers in the built environment, information and communication technologies and the delivery of programs and services—in the transportation network under the legislative authority of Parliament (subsection 170(1)); and
  2. the authority, on application, to inquire into a matter in relation to which a regulation could be made under subsection 170(1) in order to determine whether there is an undue barrier to the mobility of persons with disabilities (subsection 172(1)). If the Agency determines that there is an undue barrier, it may require the taking of appropriate corrective measures; direct that compensation be paid for any expense incurred by a person with a disability arising out of the barrier, including for any costs of obtaining alternative goods, services or accommodation; direct that compensation be paid for any wages that a person with a disability was deprived of as a result of the barrier; direct that compensation be paid up to a maximum of $20,000 for any pain and suffering experienced by a person with a disability arising out of the barrier; and direct that compensation up to a maximum of $20,000 be paid if the Agency determines that the barrier is the result of a wilful or reckless practice (subsection 172(3)).

[4] In Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 (VIA), the Supreme Court of Canada (SCC) stated in paragraphs 113 and 117 respectively, in reference to Part V, the following:

… Parliament’s decision to use this particular legislation as the source of human rights protection for persons with disabilities ensures specialized protection, applying practical expertise in transportation issues to human rights principles. This both strengthens the protection and enables its realistic implementation.

… This means identifying and remedying undue obstacles for persons with disabilities in the transportation context in a manner that is consistent with the approach for identifying and remedying discrimination under human rights law….

[5] Human rights jurisprudence has established the respective burdens of complainants and respondents when allegations of discrimination, such as applications pursuant to subsection 172(1) of the CTA, are made.

[6] Initially, the onus is on the complainant to establish, on a prima facie basis, that they experienced discrimination. In Moore v. British Columbia (Education), 2012 SCC 61 [Moore], the SCC stated at paragraph 33 that, to demonstrate prima facie discrimination, complainants are required to demonstrate that they have a characteristic protected from discrimination; that they experienced an adverse impact; and that the protected characteristic was a factor in the adverse impact.

[7] In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 [Bombardier], the SCC explained at paragraph 59 that the term prima facie refers only to the first step of the analysis and does not alter or lower the degree of proof normally applicable in civil proceedings, namely the balance of probabilities. This means that each element must be demonstrated to be “more likely than not”.

[8] Where the applicant satisfies the prima facie test, the respondent then has the onus of explaining why the adverse impacts cannot be removed. As explained by the SCC in Moore, at paragraph 33, “[o]nce a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice…. If it cannot be justified, discrimination will be found to occur” (see also Bombardier at paragraph 37).

[9] This interpretation of prima facie and the two-step approach to discrimination cases was recently confirmed by the SCC in Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (Stewart) at paragraph 24.

THE AGENCY’S APPROACH TO ACCESSIBILITY-RELATED APPLICATIONS

[10] Based on the evolution of human rights jurisprudence, including the Agency’s own jurisprudence, the language introduced by the Accessible Canada Act, and an interest in providing clarity, consistency and predictability to those submitting and responding to applications pursuant to subsection 172(1) of the CTA, the Agency is updating its approach to such applications, as described in the following sections.

I. Overall structure of the Agency’s approach

[11] The Agency has used a three-part approach with accessibility-related applications consisting of a disability determination, an obstacle (now “barrier”) determination and an undueness determination. Consistent with human rights jurisprudence, the Agency placed the onus on the applicant to establish the first two elements and, if the Agency found that these had been demonstrated on a balance of probabilities, the onus shifted to the respondent to demonstrate that the obstacle was not undue.

[12] Through this Decision, the Agency recasts its three-part approach as a two-part approach to better reflect the two-part analysis of human rights jurisprudence.

II. Part 1 of the proceedings: disability and barrier

[13] During Part 1 of the proceedings, the applicant has the onus of demonstrating, on the balance of probabilities, that they have a disability and faced a disability-related barrier.

DISABILITY

[14] In the past, where there has been some question about whether an applicant has a disability, the Agency has drawn upon the World Health Organization’s model of disability. This model considers disability to be comprised of three elements: impairment, activity limitation and participation restriction.

[15] In light of the introduction of a definition of “disability” in the CTA through the Accessible Canada Act, disability is now explicitly defined in the CTA as follows:

any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment—or a functional limitation—whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society.

[16] This definition, like the Agency’s previous understanding, is based on a social model of disability which understands disability as resulting from the interaction between an impairment or functional limitation and the social and physical environment.

[17] A person making an application pursuant to subsection 172(1) of the CTA must, therefore, demonstrate that they have an impairment or functional limitation that, in interaction with a barrier, hinders their full and equal participation in society.

[18] In some cases, a disability is self-evident, e.g., paraplegia or blindness. In other cases, however, it may be necessary for an applicant to provide evidence, such as documentation from a medical professional with relevant qualifications. The extent and nature of the evidence required to demonstrate disability will depend on various factors including the type and severity of the impairment or functional limitation and the existence of conflicting evidence.

BARRIER

[19] The Agency previously defined obstacle as a “rule, policy, practice, or physical structure that has the effect of denying a person with a disability equal access to services that are normally available to other users of the federal transportation network.”

[20] The Accessible Canada Act has amended the CTA to refer to a “barrier” rather than an obstacle and to define a barrier as:

anything—including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice—that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation.

[21] The Agency notes that a barrier may or may not be systemic; may result from the absence of a policy as well as a policy that, intentionally or not, has adverse impacts on persons with disabilities; and may result from an isolated act or omission, such as the failure to apply a policy.

[22] The Agency also notes that a difficulty encountered during travel does not become a barrier merely because it was experienced by a person with a disability. There must be some nexus between the disability and the barrier.

[23] A person making an application pursuant to subsection 172(2) of the CTA must, therefore, demonstrate that they encountered a barrier, as defined above, and that there is some connection between their disability and that barrier.

III. Part 2 of the proceedings: proposals to remove the barrier or claims of undue hardship

[24] During Part 2 of the proceedings, the onus shifts to the respondent to:

  1. explain, taking into account any proposals from the applicant, how it proposes to remove the barrier through a general modification to a rule, policy, practice, technology, physical structure, or anything else constituting a barrier, or, if a general modification is not feasible, an individual accommodation measure; or
  2. demonstrate, on a balance of probabilities, that it cannot remove the barrier without experiencing undue hardship.

[25] Transportation service providers have a positive obligation to ensure that persons with disabilities have equal access to their services. Where the Agency finds during Part 1 of the proceedings that an applicant is a person with a disability and that they encountered a disability-related barrier, the respondent must carefully consider all options for removing that barrier—taking into account suggestions from the applicant—before making any claim that they cannot do so without experiencing undue hardship.

[26] In order to maximize the accessibility of the federal transportation network, respondents should look first to general modifications to remove a barrier. If such general modifications would result in undue hardship, individual accommodation measures may be relied upon to remove the barrier.

[27] The respondent is only relieved of the duty to remove the barrier if all options for doing so would cause it undue hardship. As explained by the SCC in VIA, at paragraph 122, “[u]ndue hardship implies that there may necessarily be some hardship in accommodating someone’s disability, but unless that hardship imposes an undue or unreasonable burden, it yields to the need to accommodate”. The actions required to remove barriers usually entail some burden for transportation service providers; however, the point of undue hardship is reached only when there are constraints that make the removal of the barrier impossible, impracticable or unreasonable. These constraints may relate to cost, economic viability and safety.

[28] The threshold for establishing undue hardship is high, with each case assessed on its merits. Mere statements are not sufficient to establish undue hardship. Rather, evidence in respect of the constraints must be objective, direct and, where appropriate, quantifiable.

IV. Remedies

[29] Pursuant to subsection 172(3) of the CTA, on determining that a barrier is undue—that is, that the barrier can be removed without causing undue hardship to the respondent—the Agency may order corrective measures and/or direct that compensation be paid for any expense incurred by the applicant as a result of the undue barrier. As a result of amendments to the CTA introduced by the Accessible Canada Act, the Agency’s remedial powers now also include the authority to award compensation for lost wages, pain and suffering, and the authority to award compensation if the barrier was the result of a wilful or reckless practice.

CONFIDENTIALITY REQUESTS

[30] Applicants and respondents who are parties to cases adjudicated by the Agency may request that the Agency make an order determining that some information is confidential and will therefore not be placed on the public record.

[31] In considering such requests, the Agency is committed to transparency and is bound by the open court principle, which requires that information related to an adjudicative proceeding normally be made public and that there be a compelling reason—namely, the likelihood that a party would suffer specific direct harm if the information were to be released—for departing from this practice.

[32] At the same time, the Agency recognizes that certain information provided by applicants with disabilities may be highly personal and sensitive, and that publicly linking an applicant’s identity to such information can, in some cases, result in harm to the applicant. This may be true, for example, with respect to diagnoses of some psychological or medical conditions.

[33] The Agency recognizes that persons with disabilities may be reluctant to bring forward applications under subsection 172(1) of the CTA if they fear the impact of having their sensitive personal medical information made public. The resulting “chilling effect” may have wider implications, because such applications often result in systemic changes that are of benefit to a significant number of travellers.

[34] For these reasons, when there is a reasonable basis to believe that an applicant will suffer direct harm if their identity is publicly connected to sensitive personal information, the Agency will, on request, normally order that in the publicly available documentation related to the case, either the applicant’s name be anonymized (for example, through the use of initials) or the sensitive personal information be blacked out. If these two options reduce or eliminate the risk of harm to a comparable degree, the choice between them will be informed by an assessment of which involves less of a departure from the open court principle.

CONCLUSION

[35] The approach outlined in this Decision will be applied from the date of its issuance to all new applications made pursuant to subsection 172(1) of the CTA.

Member(s)

Scott Streiner
Elizabeth C. Barker
Date modified: