Decision No. 371-AT-R-2016

December 16, 2016
APPLICATION by Louise Bark against VIA Rail Canada Inc. (VIA) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA).
Case number: 
16-50017

SUMMARY

[1] The Canadian Transportation Agency (Agency) considered whether Louise Bark is a person with a disability for the purposes of Part V of the CTA, and if so, whether the following constitute undue obstacles to her mobility:

  • VIA’s lack of a formal policy to accommodate the needs of persons who are sensitive to scented products;
  • the alleged impossibility for Ms. Bark to use the lifts at VIA’s station in Kingston;
  • the design of the washrooms in VIA’s new LRC cars; and,
  • the lack of a call button in the wheelchair tie-down area of VIA’s passenger cars.

[2] For the reasons set out in this Decision, the Agency finds that the following constitute undue obstacles in this case:

  • VIA’s lack of a policy regarding the accommodation of sensitivity to scented or chemical products;
  • the impossibility for Ms. Bark to use the lift to board via track No. 2 at the Kingston Station.

INTRODUCTION

[3] Ms. Bark filed an application with the Agency pursuant to subsection 172(1) of the CTA against VIA concerning difficulties she alleges she experienced while travelling by train.

ISSUES

[4] The Agency will consider the following issues:

  1. Is Ms. Bark a person with a disability for the purposes of Part V of the CTA?
  2. Does VIA’s lack of a formal policy to accommodate the needs of persons who are sensitive to scented products constitute an undue obstacle to the mobility of Ms. Bark and other persons with disabilities? If so, what corrective measures should be taken?
  3. Does the alleged impossibility for Ms. Bark to use the lifts at the Kingston Station constitute an undue obstacle to her mobility and to the mobility of other persons with disabilities? If so, what corrective measures should be taken?
  4. Does the design of the washrooms in the new LRC cars constitute an undue obstacle to the mobility of Ms. Bark and other persons with disabilities? If so, what corrective measures should be taken?
  5. Does the lack of a call button in the wheelchair tie-down area of passenger cars constitute an undue obstacle to the mobility of Ms. Bark and other persons with disabilities? If so, what corrective measures should be taken?

THE LAW

[5] 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:

  1. the person who is the subject of the application has a disability for the purposes of the CTA;
  2. an obstacle exists because the person was not provided with appropriate accommodation to address their disability-related needs; and,
  3. 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.

ISSUE 1: IS MS. BARK A PERSON WITH A DISABILITY FOR THE PURPOSES OF PART V OF THE CTA?

The Agency’s approach to determining disability

[6] While there are situations where a disability is self-evident (e.g., a person who uses a wheelchair), there are cases where additional evidence is required to establish both the disability and the need for accommodation. In assessing those cases, the Agency may use the World Health Organization’s (WHO) International Classification of Functioning, Disability and Health (ICF), an internationally accepted tool for the consistent classification of functioning and disability associated with health conditions, other related WHO publications, and/or medical documentation.

[7] To be classified as being a person with a disability, the applicant has an evidentiary burden to demonstrate that they have an impairment that results in an activity limitation and that they experience a participation restriction in the context of the federal transportation network.

This case

[8] Ms. Bark uses an electric wheelchair and travels with a service dog. Ms. Bark submits that she experiences asthma attacks when exposed to scents and perfumes, and needs to be seated at a distance from passengers wearing “perfumed products”. Ms. Bark submits that an attack will only stop once the source of the irritant (i.e., the scent) is removed.

[9] Ms. Bark’s doctor indicates that Ms. Bark has asthma and that her asthmatic symptoms are worsened by scents. Ms. Bark’s doctor identifies Ms. Bark’s symptoms and functional limitations as increased coughing and dyspnea (laboured breathing). Ms. Bark uses Ventolin as needed, and her condition is managed with inhaler therapy.

[10] VIA states that Ms. Bark did not provide information in respect of the severity and duration of her symptoms. Ms. Bark explains that she was advised that she would have to see an allergist and undergo “new tests” to provide this information, and that she would be unable to obtain the results of these tests in a timely manner for the purposes of this application.

[11] VIA accepts that Ms. Bark’s “allergy to strong odours” may amount to a disability for the purposes of Part V of the CTA, and has agreed to accommodate her in that regard.

Analysis and Findings

[12] In respect of Ms. Bark’s use of a wheelchair and service dog, it is clear that Ms. Bark’s limited mobility amounts to a disability.

[13] In respect of Ms. Bark’s sensitivity to scented products, additional evidence was required by the Agency to assess and establish both the disability and the need for accommodation. The following reflects the Agency’s consideration of the evidence in that regard.

Impairment

[14] The ICF defines impairment as a loss or abnormality of a body part (i.e., structure) or the loss or deviation in body function (i.e., physiological function). The ICF clarifies that “abnormality” refers to a significant variation from established statistical norms. The existence of an impairment may be temporary or permanent.

[15] Asthma is identified in the International Classification of Diseases and Related Health Problems ICD-10 as a chronic lower respiratory disease under the chapter “Diseases of the respiratory system”. As such, the Agency accepts that asthma is an impairment and finds that Ms. Bark has an impairment.

Activity limitations

[16] Activity limitation, as defined in the ICF, is a difficulty an individual experiences while executing activities. The activity limitation associated with an impairment therefore relates to the presence of symptoms and resulting difficulties, irrespective of context.

[17] The ICF states that an activity limitation may range from a slight to a severe deviation in terms of quality or quantity in executing an activity in a manner or to the extent that is expected of people without the impairment.

[18] An activity limitation does not need to fall at the extreme end of this spectrum, although, for the purposes of the Agency’s determination of disability, the activity limitation must be significant enough to result in an inherent difficulty in executing a task or action.

[19] In light of the medical evidence and submissions by Ms. Bark, the Agency finds that Ms. Bark experiences activity limitations in the form of asthma attacks when exposed to scented products, the nature of which is significant enough to result in an inherent difficulty in executing a task or action.

Participation restrictions

[20] The ICF defines participation restriction as a problem an individual may experience in involvement in life situations.

[21] Unlike an activity limitation, a participation restriction depends on the context – in this case, the federal transportation network. The Agency therefore determines the existence of a participation restriction by comparing the individual’s access to the federal transportation network with that of an individual without the related activity limitation.

[22] Ms. Bark’s asthmatic reactions when she is exposed to scented products amounts to participation restrictions in the context of travel.

[23] The Agency therefore finds that Ms. Bark’s need to avoid exposure to scented products creates a participation restriction in that she cannot travel in the same manner as other passengers, i.e., she must avoid strong scents and could not travel if seated in close proximity to another passenger wearing scented products.

Conclusion

[24] The Agency finds that Ms. Bark has an impairment, experiences activity limitations, and encounters participation restrictions in the context of travel within the federal transportation system.

[25] The Agency therefore finds that Ms. Bark is a person with a disability for the purposes of Part V of the CTA as a result of her sensitivity to scented products.

The Agency’s approach to determining an obstacle

[26] 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.

[27] 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 an accommodation that met their disability-related needs, it cannot be said that they have encountered an obstacle.

The Agency’s approach to determining whether an obstacle is undue

[28] 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:

  1. the source of the obstacle is rationally connected to the provision of the transportation service;
  2. 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,
  3. it cannot provide any form of accommodation without incurring undue hardship.

ISSUE 2: Does VIA’s lack of a formal policy to accommodate the needs of persons who are sensitive to scented products, and the uncertainty that it creates, constitute an undue obstacle to the mobility of Ms. Bark and other persons with disabilities? IF SO, WHAT CORRECTIVE MEASURES SHOULD BE TAKEN?

Facts, evidence and submissions

Positions of the parties

Ms. Bark

[29] Ms. Bark states that VIA will usually ask passengers wearing scented products to change seats when she is affected by scents. She states that this “temporary resolution” has worked in her past travel experiences in the sense that the passengers who were requested to move did so willingly. She is concerned, however, about the fact that this procedure is not reflected in a policy, and that if a passenger refuses to move when asked by VIA personnel, she is left with no alternative, given that she is confined to the wheelchair tie-down area.

[30] Ms. Bark states that she is not asking for a separate space on the train, nor is she asking that other passengers be “screened” before they sit near her. Rather, she requests that VIA personnel be given the “authority to ask” a passenger wearing a scented product to change seats when Ms. Bark is affected. Ms. Bark submits that it is reasonable to ask passengers wearing scented products to change seats to accommodate a health condition, especially when the person experiencing the reaction cannot change seats and has to remain in a specific location such as the wheelchair tie-down area.

VIA

[31] VIA states that Ms. Bark has requested the assistance of VIA personnel to address situations where she was affected by scents on only two occasions since 2014. VIA submits that, on both occasions, it intervened rapidly to correct the situation by reseating passengers. VIA submits that Ms. Bark recognized VIA’s employees to be “great and proactive” in addressing these situations.

[32] VIA added the information regarding Ms. Bark’s “allergy to strong odours” to her “VIA Preference Profile” on May 7, 2014. More specifically, the preference profile indicates that strong scents may trigger an asthma attack, and that VIA will ask passengers wearing “strong perfume” to move to another seat in order to accommodate Ms. Bark.

[33] A bulletin entitled “Passengers with disabilities”, which was issued by VIA to its personnel, addresses “Scent or Chemical Sensitivity”. The bulletin states that a buffer zone will be created if a person in the wheelchair tie-down suffers from scent or chemical sensitivity. The VIA employee will consult with the passenger in the wheelchair tie-down and with the passenger sitting across from the wheelchair tie-down in order to make appropriate arrangements, which “may involve a seat substitution by requesting the passenger opposite the tie-down [to] move to another seat”.

[34] VIA argues that it properly manages this issue and that Ms. Bark has been provided with an appropriate accommodation. VIA states that Ms. Bark is asking the Agency to intervene in order to assuage her worries and anxiety, which VIA submits cannot be considered an obstacle.

[35] VIA adds that to screen passengers for perfume and require them to change seats would unnecessarily intrude on their personal lives and constitute undue hardship. VIA submits that the appropriate and reasonable approach is to seek the cooperation and a voluntary accommodation from passengers. VIA is of the view that proceeding otherwise would result in accusations that VIA is providing a distinct and discriminatory treatment of passengers wearing scented products. VIA submits that this would lead it to suffer undue hardship based on “reputational and commercial risk”.

Analysis and Findings

[36] The parties agree that Ms. Bark was accommodated by VIA personnel on the two occasions when she was affected by other passengers wearing scented products. As such, with respect to these specific incidents, the Agency finds that Ms. Bark did not encounter obstacles to her mobility, as VIA accommodated her needs.

[37] Ms. Bark is of the view that a formal policy requiring passengers wearing scented products to change seats would provide certainty to her and other persons with disabilities who need to be seated in the wheelchair tie-down area that they will be accommodated when affected by scents. The Agency found, in 4-AT-A-2010">Decision No. 4-AT-A-2010, that the lack of a formal policy to accommodate the needs of persons with allergies to peanuts or nuts, and the uncertainty that this creates, constitutes an obstacle to the mobility of persons with disabilities. In this case, the existing policy is directed at VIA personnel, who are instructed to request that passengers change seats, rather than being directed at passengers, who could be required to change seats. This creates uncertainty as to whether the accommodation measure needed by persons affected by scents will be provided, due to a possible refusal from passengers wearing scented products to change seats.

[38] In addition, VIA’s current policy only addresses the needs of persons with disabilities due to their sensitivity to scented or chemical products who are seated in the wheelchair tie-down area, and does not confirm an equivalent accommodation measure to persons with disabilities due to their allergy to scents who are seated elsewhere on the train.

[39] In light of the above, the Agency finds that VIA’s current policy regarding the accommodation of sensitivity to scented or chemical products is an obstacle to Ms. Bark and other persons with disabilities.

[40] The Agency is not satisfied that VIA would suffer undue hardship if it were to implement a policy that would require passengers wearing scents that are triggering symptoms in other passengers to change seats. It would not intrude on these passengers’ lives any more than would a request that they voluntarily change seats. Also, it is unlikely that a policy designed to protect passengers with sensitivities would negatively impact on VIA’s reputation. The Agency therefore finds that the obstacle is undue.

Issue 3: Does the alleged impossibility for Ms. Bark to use the lifts at the Kingston station constitute an undue obstacle to her mobility and to the mobility of other persons with disabilities? IF SO, WHAT CORRECTIVE MEASURES SHOULD BE TAKEN?

Facts, evidence and submissions

Positions of the parties

Ms. Bark

[41] Ms. Bark takes issue with the impossibility for her to use the lift to board via track No. 1 at the Kingston Station which has a weight limitation of 495 pounds. Ms. Bark is of the view that the lift should be replaced. In this regard, she has suggested an elevator or an “over track walkway”.

VIA

[42] VIA states that on some of her trips, Ms. Bark wished to use the Garaventa stair lift to board via track No. 2 at the Kingston Station. On some occasions, however, the lift failed to function properly due to the combined weight of Ms. Bark and her mobility aids, which, according to VIA, exceeds 600 pounds – the wheelchair alone weighing 405 pounds.

[43] VIA’s internal policy establishes the maximum weight that the Garaventa lift can safely handle to be between 450 to 495 pounds. VIA states that compliance with this policy is compulsory to ensure the health and safety of passengers and VIA personnel. VIA states that its “requirements and restrictions” are in line with the common practices in the current market and respond, as necessary, to health and security objectives.

[44] In light of the above, VIA suggests that Ms. Bark board via the closest track to Kingston Station, track No. 1, where a manual platform lift that can lift up to 600 pounds is available. VIA states that in order to respect the weight limitation, it crafted a solution whereby Ms. Bark’s service dog, wheelchair transfer handle and luggage are moved separately on the manual platform lift, following which Ms. Bark is boarded in her wheelchair. When using this method, Ms. Bark is separated from her service dog for 30 seconds to 1 minute. VIA states that this procedure has frequently been used at the Kingston Station by Ms. Bark and other passengers with a disability, and adds that VIA personnel are familiar with it and can perform it safely.

[45] VIA states that it continues to use its best efforts to consistently board Ms. Bark via track No. 1. In order to be accommodated via track No. 1, Ms. Bark must notify VIA 48 hours in advance of the scheduled train departure. Once her reservation is made and the accommodation she needs is requested, a Special Service Request (SSR) will appear in Ms. Bark’s file. During the pre-trip briefing, the Service Manager reviews the SSR list and “makes the necessary arrangements with the Operation Control Center (OCC)”. More specifically, a 2014 bulletin issued by VIA to its Service Managers and Kingston Station Employees states that SSRs must be monitored sufficiently in advance to make arrangements with the OCC to have the train moved to track No. 1.

[46] In the event of a last minute change, VIA’s practice is to contact Rail Traffic Control (RTC) to explain Ms. Bark’s situation. VIA states that RTC is usually able to revert back to track No. 1, subject to a possible delay. VIA submits, however, that there was no delay created by a last minute change from track No. 2 to track No. 1 in the last year, but that it was impossible for RTC to revert the train to track No. 1 on two occasions in the same time period. VIA explains that when track No. 1 is not accessible in Kingston, as required by an SSR, the Kingston Station staff will contact the access bus that has been reserved for pick-up or drop-off. The access bus will drive the passenger down the CN service road to track No. 2. If there is an “exceptionally long” delay for the access bus, the Kingston Station staff will contact an accessible taxi, which will also drive the passenger down the CN service road to track No. 2. VIA will assume the cost of an accessible taxi from track No. 2 to the passenger’s destination in Kingston.

[47] According to VIA’s records, there has been only one incident where the train arrived on the wrong track since May 2014. To correct the situation, VIA offered “many possible options” to Ms. Bark, such as free transport to track No. 2.

[48] VIA adds that the installation of new lifts that would allow Ms. Bark to access the platform on track No. 2 is currently under review. The new lifts would have a capacity of 650 pounds and would be identical to those installed at the Dorval Station. The installation of said lifts would require 4 to 6 months.

[49] In light of the above, VIA believes that it offers reasonable accommodation to Ms. Bark, as imposed in312-AT-R-2013"> Decision No. 312-AT-R-2013:

…the measures needed to meet the needs of persons with disabilities, including Ms. Sabbagh, who require wheelchair assistance to and from the boarding platform when that entails a change in floor levels are as follows:

  • wheelchair stair lifts;
  • ground-level crossings, when safe;
  • elevators that are intended for use by passengers; and,
  • ramps that are intended for use by passengers.

[50] VIA submits that it is currently not possible to have lifts that can handle heavier loads, and that in 82-AT-R-2005">Decision No. 82-AT-R-2005, the Agency recognized that entraining and detraining persons with disabilities should be subject to limitations regarding size and weight of persons and their mobility aids. VIA states that the Garaventa stair lifts were designed to accommodate the most common devices used by passengers who are mobility-impaired, and that it would be unreasonable to impose a change of equipment on VIA every time a passenger wishes to transport more than one mobility aid on the Garaventa lift at the same time. The fact that the combined weight of the items of the person with a disability is greater than the maximum weight allowed by the equipment does not mean that the equipment is sub-standard and has to be replaced. VIA states that the purchase and installation of lifts is a considerable expense and that it would be prohibitively expensive to modify the infrastructure in place at the Kingston Station.

[51] VIA submits that the evidence demonstrates that it offers to Ms. Bark accommodation measures allowing her to enjoy the same service level and the same transportation privileges as other passengers.

Analysis and Findings

[52] Ms. Bark is not able to access the train at track No. 2 using the current lift. The lift that has been installed to access track No. 2 has a weight capacity that is not sufficient to accommodate Ms. Bark and her wheelchair. While VIA has made arrangements that allow Ms. Bark to access a train via track No. 1, the weight capacity of the lift at track No. 2 represents an obstacle.

[53] VIA submits that it provides reasonable accommodation to Ms. Bark by allowing her to board via track No. 1. However, Ms. Bark seeks a solution whereby the existing lift at track No. 2 would be replaced by a mechanism that can accommodate her and her mobility aids.

[54] When the Agency inquired as to what would be involved in upgrading the lift in order to allow Ms. Bark to board the train at track No. 2, VIA responded that the installation of a new lift at track No. 2 is currently under review. VIA further indicates that these lifts would have a capacity of 650 pounds, would be identical to the ones installed at the Dorval Station and would allow Ms. Bark and her wheelchair to access track No. 2. Therefore, short of claiming undue hardship, VIA indicates that it is currently reviewing the option of replacing the existing lift with one that would accommodate Ms. Bark. It also indicates that these lifts are in service at another station, and that VIA is able to provide these lifts at other locations without incurring undue hardship.

[55] The Agency accepts that lifts will invariably have weight limitations, and that they cannot be designed to respond to the unique situation of every passenger with an unlimited weight capacity. However, the fact that VIA is already reviewing upgrading the lift with one that has increased weight capacity, and that such a lift is already in operation at another station is an indication that lower weight limitations on lifts may represent a problem for a number of persons with disabilities, and that VIA is in a position to make modifications to rectify the situation.

[56] The Agency is satisfied that the installation of the new lift is reasonable accommodation in the circumstances. The installation of a new lift eliminates the difficulties associated with the existing alternative solution, put in place by VIA, of requiring Ms. Bark to access the train only at track No. 1. By upgrading the lift at track No. 2, there would be no possible delays associated with rerouting the train to No. 1, and there would be no need to make use of an access bus to bring Ms. Bark to track No. 2 in the event that track No. 1 is not available. Upgrading the lift at track No. 2 will provide Ms. Bark and other travellers with mobility-related disabilities access most in keeping with that of other passengers. This is the better solution and appears to already be under consideration by VIA and in place in at least one other location. While Ms. Bark makes mention of a possible elevator or an over- the -track walkway, she does not suggest how these options would be more appropriate than replacing the existing lift. These other options might also raise safety concerns or be less cost effective. In these circumstances and in the absence of undue hardship, the upgrading of the lift at track No. 2 is reasonable accommodation.

Issue 4: Does the design of the washrooms in the new LRC cars constitute an undue obstacle to the mobility of Ms. Bark and other persons with disabilities? IF SO, WHAT CORRECTIVE MEASURES SHOULD BE TAKEN?

Facts, evidence and submissions

Positions of the parties

Ms. Bark

[57] Ms. Bark submits that the design of the washrooms in the new LRC cars makes them less accessible than the washrooms in the old LRC cars. Ms. Bark explains that, in the new LRC cars, the sink has been moved and is now in a position that blocks the armrest of her wheelchair, preventing her from getting close enough to the toilet to use it.

[58] In Decision No. LET-AT-R-42-2016, Ms. Bark was asked to provide a clear description of what prevents her from reaching the toilet in VIA’s new LRC cars. She was also asked to provide a clear description of how she manages transfers in her daily living, including her use of washrooms.

[59] In response, Ms. Bark submitted pictures illustrating the way the sink in the washrooms of the new LRC cars protrudes in front of the toilet, and how it stops her wheelchair a few inches from the toilet. According to the pictures, it appears that Ms. Bark’s wheelchair, at her feet level, stops between 4 and 6 inches from the toilet. Ms. Bark has not explained how this distance between her wheelchair and the toilet prevents her from performing a transfer, in contrast to how she used to perform transfers to the toilet in the old LRC cars. Ms. Bark also did not indicate how she usually transfers in her daily life, and how this cannot be reproduced in VIA’s new LRC cars.

VIA

[60] VIA states that it complies with the requirement set out in section 1.3.3 of the “Passenger Rail Car Accessibility and Terms and Conditions of Carriage by Rail of Persons with Disabilities” (Rail Code) entitled “Washrooms”:

A coach car with a wheelchair tie-down should have at least one washroom that is wheelchair-accessible. This means that the washroom should satisfy the criteria set out in Appendix C, i.e. that the washroom should contain features that make it accessible to persons with disabilities including features related to space and the location of fixtures so that they are usable by a person in a personal wheelchair. Carriers are encouraged to pursue the possibility of making this washroom large enough to accommodate a person in a wheelchair and their attendant.

If it is not possible, as a result of structural limitations of an existing coach car, for this washroom to be accessible to a person in a personal wheelchair, it should at least be accessible to a person in an on-board wheelchair.

[61] VIA states that the washrooms in the new LRC cars are accessible to the majority of passengers travelling with a personal wheelchair. As the design of the washrooms apparently does not accommodate Ms. Bark’s personal wheelchair, VIA offered her the use of one of VIA’s onboard manual wheelchairs, which Ms. Bark declined due to her shoulders not being strong enough to use it.

[62] VIA explains that, during the refurbishment of the LRC cars that begun in 2009, the sink was centered in the counter, moving it 8 to 10 inches from the toilet, and supplementary support bars were added to assist passengers with a disability. VIA presumes that these support bars are what prevents Ms. Bark from getting “up close enough to the toilet to use it”.

[63] VIA adds that its accessible washrooms are equipped with “slip seats”, which allow passengers to move from their wheelchair onto the slip seat, and then to the toilet.

[64] VIA submits that, in the absence of more specific details regarding Ms. Bark’s particular requirements with respect to the use of the washroom, it cannot be expected to provide more accommodation. VIA adds that it would be unreasonable to move the sink in the washrooms, given the planned acquisition of new train cars. VIA also states that “the accommodation issue is currently under extensive analysis”.

Analysis and Findings

[65] The burden is on Ms. Bark to demonstrate that the design of the washrooms in the new LRC cars creates an obstacle to her mobility.

[66] In support of her position, Ms. Bark submitted pictures and more details about the changes to the new LRC cars. However, Ms. Bark has not explained how the distance between her wheelchair and the toilet prevents her from performing a transfer relative to how she used to perform transfers to the toilet in the old LRC cars. Other than submitting a picture of the arm of her wheelchair being stopped by the counter, Ms. Bark has provided no evidence illustrating how her ability to use the washroom is affected by the design of the washrooms in the new LRC cars.

[67] Ms. Bark has failed to establish that she needs the design of the washrooms in the new LRC cars to be modified in order to ensure that she has equal access to the transportation network. More specifically, the Agency finds that Ms. Bark has not established that the design of the washrooms in the new LRC cars represents an obstacle to her mobility. Having found no obstacle, there is no need for the Agency to consider the aspect of undueness.

Issue 5: Does the lack of a call button in the wheelchair tie-down area of PASSENGER cars constitute an undue obstacle to the mobility of Ms. Bark and other persons with disabilities? IF SO, WHAT CORRECTIVE MEASURES SHOULD BE TAKEN?

Facts, evidence and submissions

Positions of the parties

Ms. Bark

[68] Ms. Bark has requested that a call button or another quiet alerting device be installed near the wheelchair tie-down area that will allow her to ask VIA personnel to assist her, when, for example, she needs to use the washrooms, or if she spills something.

[69] Ms. Bark does not find VIA’s offered alternative to the call button (i.e., contacting the train master via text messages) to be appropriate given that cell phone reception is not always available on board. She also submits that VIA personnel do not consistently “remember to inquire periodically”.

VIA

[70] VIA refers to section 2.2.6 of the Rail Code entitled “On-board services that require advance notice”, which states that:

If requested in advance to do so by a person with a disability, a rail carrier should provide the following services on a train:

(…)

c. assisting, other than by carrying, with moving to and from a passenger rail car washroom, including assistance with using an on-board wheelchair;

(…)

g. inquiring periodically during the trip about the person’s needs, and attending to those needs where the services required are usually provided by the carrier.

[71] VIA submits that nothing in these rules of practice provides that the transportation service provider should make emergency buttons or other devices available to allow persons with disabilities to “summon staff whenever they want”. Rather, VIA’s practice is to require service attendants to conduct periodic checks on passengers throughout the duration of travel, which VIA submits is in accordance with the Rail Code. VIA adds that there are numerous interactions between passengers and the on-train service employees during a trip, and lists services provided to Ms. Bark during her trips (e.g., assistance with luggage, timely assistance for passengers with limited mobility, safety briefing, beverage and hot towel services, meal service, water service every 30 minutes, etc.).

[72] VIA has suggested an alternative to Ms. Bark, which has been noted in her VIA Preference Profile as of March 2016, which entails providing her with the name and telephone number of the train master so that she can contact him via text messages when she requires assistance. When the train master receives the message, they will give instructions to staff to attend to Ms. Bark’s needs as soon as possible. According to VIA’s bulletin entitled “Passengers with disabilities”, the Service Manager is required to respond to any text message from the passenger requesting assistance or delegate the matter to a Senior Service Attendant. VIA notes that, similarly to a situation where Ms. Bark would require assistance through a call button, its personnel might not be in a position to respond immediately to Ms. Bark’s requests for assistance at all times. In respect of cell phone reception, VIA explains that cell phone coverage is “essentially available” over the whole corridor between Montréal and Toronto, and that, exceptionally, the longest period during which cell phone reception may be unavailable does not exceed 5 minutes.

[73] VIA has “evaluated various solutions” and estimates their cost, including material, engineering and labour, at $350,000 for all cars equipped with a wheelchair tie-down. VIA submits that it would be unreasonable and represent a financial and operational excessive burden to require the retrofitting of its “old train cars” to add a call button, given the planned acquisition of new train cars. VIA states that its fleet should be replaced in approximately 5 years, and that the current design plans for the new fleet provides that all wheelchair tie-down areas will be equipped with call buttons.

Analysis and Findings

[74] Ms. Bark requires assistance while travelling and needs some way to request assistance when in the tie-down area. Having considered the issue, the Agency concludes that the measures implemented by VIA to meet Ms. Bark’s needs represent reasonable accommodation.

[75] Viewed in context, the ability of Ms. Bark to communicate with staff by text message is a reasonable means by which she can request assistance. In addition to this mechanism, the evidence indicates that the staff can periodically inquire with Ms. Bark about her needs and attend to them where required. This is in addition to the normal interactions they would have with her during the trip. While the cell phone reception might not be 100 percent reliable, the interruptions do not appear to be of significant duration and there is no evidence that this has been an issue in the past. The Agency finds that with these measures, Ms. Bark has a reasonable means by which she can request assistance when required.

[76] The concept of reasonable accommodation recognizes the right of persons with disabilities to the same access as those without disabilities, and imposes a duty on others to do whatever is reasonably possible to accommodate this right (Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650 at para. 121). In this regard, Ms. Bark’s application seeks as accommodation the installation of call buttons. However, the Agency finds that the measures implemented by VIA are equally responsive to Ms. Bark’s needs, and allow her to effectively communicate with staff in order to receive assistance.

[77] Having found that Ms. Bark has been provided with reasonable accommodation, the Agency finds that the lack of a call button in the tie down areas is not an undue obstacle.

ORDER

[78] The Agency finds that the following constitute undue obstacles in this case:

  • VIA’s lack of a policy regarding the accommodation of sensitivity to scented or chemical products;
  • the impossibility for Ms. Bark to use the lift to board via track No. 2 at the Kingston Station.

[79] Therefore, the Agency orders VIA to:

  • implement a formal policy requiring passengers wearing scented products to change seats if a passenger seated anywhere in the train (and not only in the wheelchair tie-down area) who has a sensitivity to scented products experiences a reaction; and,
  • upgrade the lift at the Kingston Station with a weight capacity of at least 650 pounds to allow Ms. Bark to board via track No. 2.In the interim, VIA will use the manual lift at track No. 1 to board Ms. Bark.

[80] The Agency orders VIA to file a copy of the above policy, related procedures and training material with the Agency, in addition to reflecting the policy on its website, and to file its suggested timeline for the completion of the upgrade of the lift at the Kingston Station for the Agency’s review and approval. VIA has until March 15, 2017 to comply with this order.

Member(s)

Scott Streiner
Sam Barone
Stephen Campbell
Date modified: