Decision No. 379-AT-R-2016

December 22, 2016
APPLICATION by Anne Rector 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: 
16-00463

SUMMARY

[1] Anne Rector filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the CTA concerning difficulties she experienced while making accommodation requests with VIA between 2000 and 2015 and the manner in which she was treated by VIA staff at the Montréal station on October 12, 2015.

[2] The Agency opened the pleadings on May 5, 2016. VIA filed its answer on June 3, 2016 and Ms. Rector filed her reply on June 17, 2016.

[3] The Agency will address the following issues in this Decision:

  1. Is Ms. Rector a person with a disability for the purposes of Part V of the CTA?
  2. Does VIA’s medical approval process and the impossibility of creating a permanent medical file with VIA constitute undue obstacles to Ms. Rector’s mobility? If so, what corrective measures should be taken?
  3. Does the manner in which Ms. Rector alleges she was treated by VIA staff at the Montréal station on October 12, 2015, including a lack of assistance with baggage, the initial refusal by VIA staff to carry her medical device, and the lack of sensitivity towards her disability-related needs, constitute an undue obstacle to her mobility? If so, what corrective measures should be taken?

[4] For the reasons provided below, the Agency finds that Ms. Rector is a person with a disability for the purposes of Part V of the CTA; VIA’s medical approval process does not constitute an obstacle to Ms. Rector’s mobility; and the manner in which Ms. Rector was treated by VIA’s staff at the Montréal station on October 12, 2015 constitutes an undue obstacle.

BACKGROUND

[5] Ms. Rector travelled four times with VIA: in 2000, 2003, 2005, and 2015.

[6] Ms. Rector’s itinerary for her October 2015 trip was:

Outbound on October 10, 2015

Belleville, Ontario – Montréal, Québec – Train 64

Inbound on October 12, 2015

Montréal – Kingston, Ontario – Train 65

Kingston – Belleville – Train 47

[7] The Agency notes that throughout these proceedings the parties made reference to Ms. Rector’s reclining chaise as a mobility device; however, the Agency will refer to it as a medical device. Typically, a mobility device is used to assist the mobility of a person with a disability. Ms. Rector’s reclining chaise does not assist her in this regard; rather, it is a device that allows her to sit comfortably.

THE LAW

[8] 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. RECTOR A PERSON WITH A DISABILITY FOR THE PURPOSES OF PART V OF THE CTA?

[9] 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 generally uses 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.

[10] In her application, Ms. Rector filed, among other things, the following documents:

  • a disability travel card and an Access 2 card issued by Easter Seals Canada on April 5, 2005;
  • an approval of her reclining chaise as a medically necessary device by the Belleville Fire Department dated March 13, 2003; and,
  • a note by her orthopedic surgeon dated April 18, 2000, indicating that she needs to travel with an attendant.

[11] In its answer, VIA disputes Ms. Rector’s claim that she is a person with a disability, arguing that she did not provide sufficiently persuasive evidence to establish the existence of a disability pursuant to Part V of the CTA. In reply, Ms. Rector, filed an Assessment form to determine disability pursuant to the Canada Transportation Act (medical form). The Agency provided VIA with an opportunity to respond to the new information contained in the assessment. In that response, VIA did not dispute that Ms. Rector is a person with a disability.

[12] In Ms. Rector’s medical form her family doctor indicates that she has a degenerative disc disease, benign positional vertigo, and that she has a lumbar injury, a repetitive strain injury to her right hand, and a rotator cuff injury. He goes on to state that she is unable to sit upright, and has greatly limited standing ability. As a result, a reclining medical device is necessary and must be accessible at all times. Ms. Rector’s doctor has classified her condition as being permanent and severe.

[13] The ICF lists degenerative disc disease (spondylosis) as an impairment. The medical information establishes that Ms. Rector has a permanent back injury and injuries to her right hand and rotator cuff, which affect her ability to sit, stand and carry luggage, and which would affect her ability to travel. The Agency finds, based on the above, that Ms. Rector has an impairment, experiences activity limitations, and encounters participation restrictions in the context of travel within the federal transportation system.

[14] The Agency therefore finds that Ms. Rector is a person with a disability for the purposes of Part V of the CTA.

ISSUE 2: DOES VIA’S MEDICAL APPROVAL PROCESS AND THE IMPOSSIBILITY OF CREATING A PERMANENT MEDICAL FILE CONSTITUTE UNDUE OBSTACLES TO MS. RECTOR’S MOBILITY? IF SO, WHAT CORRECTIVE MEASURES SHOULD BE TAKEN?

[15] To determine whether there is an undue obstacle to the mobility of a person with a disability within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether that person’s mobility is restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle is undue.

[16] Service providers have a duty to accommodate persons with disabilities up to the point of undue hardship. 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.

[17] If it is determined that the person was provided with an accommodation that fully met their disability-related needs, it cannot be said that they have encountered an obstacle.

[18] If a service provider wants to claim that accommodating the traveller’s disability is not possible, it 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.

Positions of the parties

Ms. Rector

[19] Ms. Rector alleges that in order to travel by train she requires the following accommodation:

  • facing quad seats (i.e., a 4-seat configuration with two seats facing one another) [one for herself and one for her legs]
  • an attendant
  • baggage assistance
  • carriage of her medical device (a reclining chaise)

[20] Ms. Rector states that when she requested accommodation for her 2000, 2003, 2005, and 2015 trips she had to “fight for access” and “reprove” her medical status for each trip. Ms. Rector submits she has had to provide a number of documents to support her requests and give extensive explanations to VIA Customer Relations staff regarding her disability and her disability-related needs. She argues that it takes VIA Customer Relations staff weeks to approve her accommodation request. Ms. Rector contends that to reargue her case every time she makes a reservation is “draining, demoralizing and discriminating”. Ms. Rector argues that she is at a “significant disadvantage” to able-bodied persons who can make reservations and get tickets with ease.

[21] Further, Ms. Rector submits that, on June 15, 2015, while making reservations for her October 2015 trip, she was told by VIA Customer Relations staff that her records were not retained as she is not a frequent traveller and that she may have to obtain new documentation from a doctor.

[22] Ms. Rector states that after each incident, she was reassured by VIA Customer Relations staff that she would not have to go through the medical approval process again. However, according to Ms. Rector, she was subject to the same “onerous” process on June 15, 2015 when she made reservations for her October 2015 trip.

[23] Ms. Rector maintains that she has proven her disability and medical needs to VIA’s satisfaction in the past, and is currently unable to provide VIA with its Medical Form for Passengers with Special Needs (accommodation form), or any other medical documentation as she is now “doctor-orphaned”, given that her family doctor closed his practice.

VIA

[24] VIA states that as Ms. Rector’s request for accommodation includes the transportation of her reclining chaise and two extra seats, it requires Ms. Rector to justify and support her requests each time she travels, considering the extent of these requests and the costs involved.

[25] Further, VIA argues that the documents that Ms. Rector filed in support of her requests (i.e., a letter from her orthopedic surgeon dated April 18, 2000, a local Fire Department’s attestation from 2003, and an Easter Seal Disability ID from 2005) do not prove that the accommodation requested is appropriate or required to manage her disability when she travels by train.

[26] VIA contends that for future travel, Ms. Rector will need to support her accommodation request with its accommodation form as it addresses issues that are specific to medical issues that affect a passenger’s ability to travel by train. According to VIA, its medical approval process is an essential part of properly accommodating persons with a disability, and requiring passengers to complete its accommodation form is entirely reasonable and justifiable.

[27] VIA states that regardless of the above, and despite the absence of additional recent documents, it provided Ms. Rector with the requested accommodation as a demonstration of good faith.

[28] With respect to not having a permanent medical file for Ms. Rector, VIA states that it has been documenting special accommodations in its Preference Profile System for several years; however, this system was not in place when Ms. Rector travelled in 2005.

[29] VIA states that, for Ms. Rector’s October 2015 trip, it created a Preference Profile (profile) for her that specifies her personal needs. VIA submits that this system can become inactive if not used for several years; however, the information related to a traveller’s personal needs remains accessible to its agents for future reservations. Therefore, in this case, VIA will immediately be made aware of Ms. Rector’s needs through her profile. Finally, VIA claims that the creation of a profile for Ms. Rector in no way reduces the importance or necessity for VIA to obtain new supporting medical documents from her.

Analysis and findings

VIA’s medical approval process

[30] It is the service provider, as part of its duty to accommodate, that is responsible for identifying and providing the measures that will be required to meet the needs of a person with a disability. In Provencher v. Air Canada Decision No. 19-AT-A-2013, the Agency recognized that carriers may require information from persons’ respective physicians to assess their fitness to travel and to determine how best to meet their disability-related needs.

[31] The Agency finds that, in the circumstances, it was reasonable for VIA to require Ms. Rector to submit updated medical information given that there had been a significant passage of time (10 years) since her documents were last submitted to VIA. Further, the Agency finds that, as Ms. Rector’s previously submitted documents do not indicate that her disability is permanent, it was also reasonable for VIA to request that Ms. Rector’s doctor complete VIA’s accommodation form.

[32] The Agency recognizes that there is an obligation on the part of a person seeking accommodation to participate in the process of determining how their disability can best be accommodated. Therefore, based on the above, the Agency finds that VIA’s medical approval process does not constitute an obstacle to Ms. Rector’s mobility. Rather, it is a necessary tool to allow the service provider to accommodate a person with a disability.

[33] However, the Agency notes that the completion of VIA’s accommodation form may prove difficult for Ms. Rector in the future as she is now without a doctor. The Agency therefore recommends that the parties take a common sense approach to this issue. The search for accommodation is a multi-party inquiry (Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970 at para. 43) and VIA’s interest in obtaining information regarding Ms. Rector’s disability must be weighed against Ms. Rector’s right not to be overburdened with unreasonable requests for information. This is especially true given that VIA now has a copy of Ms. Rector’s medical form that contains pertinent medical information relating to her disability.

The impossibility of creating a permanent medical file

[34] The Agency notes that there are situations where a variety of accommodation measures may meet a person’s disability related needs. The accommodation measure does not have to be exactly what the person requests, but it must be reasonable and effective.

[35] Ms. Rector stated that she finds VIA’s medical approval process to be onerous. However, reasonable demands associated with medical approvals do not necessarily constitute an obstacle to a person’s mobility. The applicant must show that the process is demanding to the point where it results in the person being denied equal access to services available to others in the federal transportation network. The Agency finds that Ms. Rector has not demonstrated that this is the case.

[36] The Agency further notes that VIA has proactively taken positive measures to create files for its repeat passengers through its Preference Profile System. Even though a passenger’s profile may become inactive if not used for several years, the information contained within the profile remains accessible to its agents, thus creating a permanent file. In this case, VIA stated that it created a profile for Ms. Rector containing information on her personal needs. Therefore, her profile should assist in the accommodation of her disability-related needs in the future, especially if it is updated with the information contained in Ms. Rector’s medical form filed in this proceeding. Further, the prior lack of a permanent file was not an obstacle. Even if there had been a permanent file on Ms. Rector, it would not be unreasonable for VIA to request additional medical information if it had reason to believe that the information on file was out of date.

[37] Based on the foregoing, the impossibility of VIA creating a permanent medical file for Ms. Rector does not constitute an obstacle.

ISSUE 3: DOES THE MANNER IN WHICH MS. RECTOR ALLEGES SHE WAS TREATED BY THE STAFF AT THE MONTRÉAL STATION ON OCTOBER 12, 2015, INCLUDING THE LACK OF ASSISTANCE WITH BAGGAGE, THE INITIAL REFUSAL BY VIA STAFF TO CARRY HER MEDICAL DEVICE, AND THE LACK OF SENSITIVITY TOWARDS HER DISABILITY RELATED NEEDS, CONSTITUTE AN UNDUE OBSTACLE TO HER MOBILITY? IF SO, WHAT CORRECTIVE MEASURES SHOULD BE TAKEN?

Positions of the parties

Ms. Rector

[38] Ms. Rector states that although she was assured on June 15, 2015 by VIA’s Customer Relations staff, while making her October 2015 reservation, that baggage transfer assistance would be provided on October 12, 2015 at the Montréal station, there were neither a porter nor any luggage carts present to provide such assistance. Ms. Rector indicates that when she went to the baggage counter to request assistance, she was refused.

[39] In addition, Ms. Rector submits that, while seeking assistance with her baggage and her medical device, two of the VIA employees with whom she dealt with were “rude and aggressive”. Ms. Rector maintains that they intimidated her and her husband in front of other passengers and humiliated her by forcing her to kneel on the floor to retrieve her documents. Ms. Rector argues that these employees also challenged the legitimacy of her medical device.

[40] According to Ms. Rector, the VIA employees insisted that her medical device was, in fact, oversized luggage, and told her that she would have to take a later train if she wanted to travel with it. Ms. Rector submits that she tried to offer proof that it is a medically necessary device, that she had made advance arrangements with Customer Relations staff to have it carried on board, and that she could not take a later train as longer train travel time would cause her more pain.

[41] Ms. Rector maintains that for nearly an hour the two VIA employees refused to contact VIA’s Customer Relations staff, or to look at her reservation, her profile, or her documents to confirm her medical standing and the carriage of her medical device. Ms. Rector states that only following the intervention of personnel from VIA’s Customer Relations – minutes before departure – was she provided with assistance and allowed to board the train with her medical device.

VIA

[42] VIA argues that even if it were proven that VIA’s employees were rude to Ms. Rector and provided her with poor service, these events have nothing to do with Ms. Rector’s disability or with discriminatory treatment, but rather relate to a customer service failure.

[43] VIA submits that Ms. Rector’s reclining chaise should not be considered a medical device but instead should be considered a household effect that she wishes to carry with her. VIA claims that, even if it was considered a medical device, it is not a mobility aid that is necessary to ensure Ms. Rector’s access to VIA’s train, and as such, it must be managed by VIA in the same manner as any other oversized luggage.

[44] VIA claims that it would face undue hardship in transporting Ms. Rector’s “oversized luggage/medical device” as it is too heavy to carry. VIA argues that its equipment has physical or structural limitations and that it cannot redesign or modify its equipment in order to remove these obstacles without facing undue hardship.

[45] VIA states that, in these circumstances, its practice is to not carry the “oversized luggage/medical device” when it determines that it is not medically required. In addition, VIA submits that it charges a fee for oversized luggage unless the passenger proves that they medically require it in order to supplement their mobility due to a physical condition.

Analysis and findings

Lack of assistance with baggage

[46] Ms. Rector’s medical form indicates that she has a repetitive strain injury to her right hand and a rotator cuff injury; therefore, it is reasonable to assume that Ms. Rector is unable to carry her own baggage. Accordingly, the Agency finds that Ms. Rector requires baggage assistance in order to have equal access to the federal transportation network.

[47] The Agency’s guidance document, Passenger Rail Car Accessibility and Terms and Conditions of Carriage by Rail of Persons with Disabilities (Rail Code) states that when a request is made in advance of travel, a rail carrier should provide assistance with retrieving and stowing checked baggage and retrieving carry-on baggage.

[48] Ms. Rector made her request for baggage assistance on June 15, 2015, well in advance of her October 2015 trip. The Agency finds that VIA’s initial lack of assistance with Ms. Rector’s baggage was inconsistent with the Rail Code and created an obstacle to Ms. Rector’s mobility.

[49] VIA did not present any evidence or arguments suggesting that it could not remedy this obstacle; therefore, the Agency finds that the obstacle is undue.

Initial refusal to carry her medical device

[50] Ms. Rector’s doctor indicated on her medical form that her medical device is essential and must travel with her. According to her doctor, she is unable to sit upright and has greatly limited standing ability; hence, her medical device must be accessible at all times. Based on the foregoing, the Agency finds that Ms. Rector’s reclining chaise is a medical device, not oversized luggage, as it is required to meet her disability-related needs.

[51] The Agency notes that, although VIA claims that Ms. Rector’s medical device is oversized luggage and is too heavy to carry, these statements are inconsistent with VIA’s past acceptance of her medical device and its carriage on the outbound portion of her October 2015 trip.

[52] The Rail Code sets out that “when advance notice is given, a rail carrier should accept for carriage … [a] medical device.” It further states that “the carriage of these aids should be without charge and in addition to the free baggage allowance permitted to a passenger.” In this case, Ms. Rector made her request to travel with her medical device well in advance of her departure. That request was accepted and confirmed by VIA’s Customer Relations staff.

[53] The Agency recognizes that VIA ultimately carried Ms. Rector’s medical device, but notes that she had to argue with VIA employees for this to happen. It is reasonable to assume that without the intervention of VIA’s Customer Relations staff, Ms. Rector would not have been accommodated and consequently would have missed her train. Further, it is unclear why, on October 12, 2015, VIA employees insisted that Ms. Rector take a later train. The Agency therefore finds that by initially refusing to carry her medical device, VIA failed to apply the Rail Code for the return portion of Ms. Rector’s itinerary and that VIA’s initial refusal to carry Ms. Rector’s medical device is an obstacle to her mobility.

[54] VIA did not file persuasive arguments or evidence that it would face undue hardship in carrying Ms. Rector’s medical device. Thus, based on the above, the Agency finds that the obstacle is undue.

Lack of sensitivity towards her disability-related needs

[55] The Agency guidance material: The Personnel Training for the Assistance of Persons with Disabilities Regulations (PTR) state that employees who provide transportation-related services, interact with the public, or make decisions with respect to the carriage of persons with disabilities should receive training on the carrier’s policies and procedures with respect to the assistance of persons with disabilities travelling with the carrier. The intent of this training is to ensure that employees are aware of, and are sensitive to, the particular needs of persons with disabilities, and are able to provide the necessary level of service to such travellers.

[56] Ms. Rector provided a detailed account of the incident that occurred on October 12, 2015 at the Montréal station, which was not contested by VIA but referred to by it as a “customer service failure”. However, the Agency finds that the issue is related to Ms. Rector’s status as a person with a disability, and that VIA’s employees’ lack of awareness regarding the needs and rights of Ms. Rector, as a traveller with a disability, and treatment of her in an undignified manner constituted failure to apply the PTR and resulted in an obstacle to Ms. Rector’s mobility.

[57] VIA did not present any evidence or arguments suggesting that it could not remedy this obstacle; therefore, the Agency finds that the obstacle is undue.

SUMMARY

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

  1. VIA’s initial lack of assistance with Ms. Rector’s baggage at Montréal station on October 12, 2015;
  2. VIA’s initial refusal to carry Ms. Rector’s mobility device at Montréal station on October 12, 2015; and,
  3. VIA’s lack of sensitivity towards Ms. Rector’s disability-related needs at Montréal station on October 12, 2015.

ORDER

[59] The Agency orders VIA to:

  1. add to Ms. Rector’s profile that her reclining chaise is a medical device, that it is to travel with her free of charge, and file a copy of Ms. Rector’s profile with the Agency;
  2. issue a bulletin and provide training to its agents, service managers, and train and station personnel on the obligation to:
  • accommodate the particular needs of travellers with disabilities, including invisible disabilities;
  • maintain awareness of and sensitivity regarding accessibility issues; and
  • protect the dignity of travellers with disabilities, in part by holding any conversation concerning such travellers’ disabilities and needs in private, whenever possible; and,

3. provide the Agency with a copy of the bulletin and information on the required training, once they have been developed and delivered, and no later than March 31, 2017.

Member(s)

Scott Streiner
Sam Barone
William G. McMurray
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