Decision No. 422-AT-MV-2012

November 6, 2012

APPLICATION by Anemone Cerridwen against OC Transpo.

File No.: 
U3570/12-02919

INTRODUCTION

[1] Anemone Cerridwen filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) against OC Transpo with respect to OC Transpo’s refusal to allow her to go barefoot on its buses, which is the accommodation she seeks due to problems with her feet.

THE LAW

[2] The Agency’s legislative mandate with respect to persons with disabilities is found in Part V of the CTA, which contains a regulation-making authority [subsection 170(1)] and a complaint adjudication authority [subsection 172(1)], both for the express purpose of removing undue obstacles to the mobility of persons with disabilities from the federal transportation network.

[3] When adjudicating an application, 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. An obstacle is a rule, policy, practice, physical barrier, etc. that has the effect of denying equal access to services offered by the transportation service provider that are available to others; 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. If the obstacle is found to be undue, the Agency will order corrective measures necessary to remove the undue obstacle.

BACKGROUND

[4] In order to assess whether Ms. Cerridwen is a person with a disability for the purposes of the CTA, Ms. Cerridwen was required to provide information from her physician. The Agency considered the information filed by Ms. Cerridwen and issued an interim decision dated June 22, 2012, in which the Agency found that Ms. Cerridwen had not met her evidentiary burden of demonstrating that, for the purposes of Part V of the CTA, she is a person with a disability as a result of the problems with her feet, as these problems do not constitute an impairment, which is a prerequisite to a positive finding of disability. Ms. Cerridwen made a further submission in response to the interim decision.

ISSUE

[5] In this Decision, the Agency examines whether Ms. Cerridwen is a person with a disability for the purposes of Part V of the CTA as a result of the following problems with her feet:

  • bleeding heels,
  • calluses under toenails,
  • corns; and,
  • overlapping toes.

CONCLUSION

[6] As indicated in the reasons below, the Agency finds that Ms. Cerridwen is not a person with a disability for the purposes of Part V of the CTA.

FACTS, EVIDENCE AND SUBMISSIONS

[7] Ms. Cerridwen states that she goes barefoot for medical reasons. She submits that OC Transpo thinks that the danger from going barefoot is greater than the danger from wearing shoes and that she must wear footwear for her own safety. She is of the opinion that OC Transpo’s safety information is inaccurate, but even if it was not, “it should be up to [her] to decide which danger to risk.”

[8] Ms. Cerridwen questions the legality of “no-bare-feet rules” as she submits that there is scientific evidence that the wearing of shoes causes medical problems for many people, not only individuals, such as herself, who are not able to ever find shoes that fit. Ms. Cerridwen submits that, if it was not for the “no-bare-feet rules”, she would not have some of the problems with her feet. She states that some problems “cleared up” after 2.5 years of going barefoot, but this will never be the case for some of the problems.

ANALYSIS AND FINDINGS

The Agency’s approach to the determination of disability

[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 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.

[10] In accordance with the ICF, the Agency views a disability as comprising three dimensions: impairment, activity limitation and participation restriction. The Agency’s decision precedents require that all three dimensions be established in order for a disability to exist for the purposes of Part V of the CTA.

Impairment

[11] 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.

[12] To determine whether a person’s health condition qualifies as an impairment, the Agency uses the ICF, other related WHO publications such as the International Classification of Diseases (ICD‑10), and/or medical documentation.

Activity limitation

[13] 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.

[14] 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.

[15] 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.

Participation restriction

[16] Participation restriction, as defined in the ICF, is a problem an individual may experience in involvement in life situations.

[17] 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.

[18] A person’s impairment and related activity limitation may result in a participation restriction in some contexts. However, this does not mean that the person will necessarily experience a participation restriction in using the federal transportation network.

[19] It is the applicant’s responsibility to provide sufficiently persuasive evidence to establish the existence of a disability in terms of impairment, activity limitation and participation restriction.

The case at hand

[20] The Agency is of the opinion that the ICF provides a valid framework for the Agency’s analysis and determination of whether Ms. Cerridwen is a person with a disability for the purposes of Part V of the CTA. A determination that Ms. Cerridwen is a person with a disability is a necessary qualifying step before addressing whether Ms. Cerridwen encountered an obstacle to her mobility. The Agency’s process has allowed for her participation and input through her written submissions. Ms. Cerridwen, therefore, had the opportunity to file evidence in support of her contention that she is a person with a disability for the purposes of Part V of the CTA as it relates to the problems with her feet.

Is Ms. Cerridwen a person with a disability due to the problems with her feet?

Impairment

[21] A February 2010 medical note from Ms. Cerridwen’s physician states that Ms. Cerridwen has the following problems with her feet due to poorly fitting shoes

  • bleeding heels,
  • calluses under toenails,
  • corns; and,
  • overlapping toes.

[22] Her physician also indicates that “[the] patient finds walking in footwear much more tiring than walking barefoot, and finds herself feeling more coordinated after switching to bare feet on a full‑time basis.”

[23] In response to the interim decision, Ms. Cerridwen submits that the problems with her feet identified in her physician’s note, as well as blisters and squeezed toes, are covered by the ICD‑10. In this regard, Ms. Cerridwen made reference to various classifications and sub‑classifications in the ICD-10 in support of her position that the various problems with her feet are impairments. Ms. Cerridwen also made general reference to classifications identified in an ICF‑related clinician’s form.

[24] Although the ICD‑10 may include references to the problems with Ms. Cerridwen’s feet, this reflects the comprehensive and virtually all-inclusive nature of this WHO publication, which cites over 12,000 codes for medical conditions, ranging from bruises and scrapes to different forms of cancer.

[25] However, for the Agency’s purposes, conditions which are common and relatively minor do not represent a “loss or abnormality of a body part or function” such that they do not constitute impairments for the purposes of Part V of the CTA. Similar to “activity limitations”, an impairment must be significant enough to negatively impact the functioning of a body part or system. Conditions which are common and relatively minor and which do not result in such an impact on functioning are not considered to be impairments for the purposes of Part V of the CTA.

[26] The Agency is of the opinion that the problems with Ms. Cerridwen’s feet – overlapping toes, bleeding heels, corns, calluses, blisters and squeezed toes – are common, relatively minor and, in most cases, easily addressed by people and usually without medical intervention. Moreover, the Agency is of the opinion that Ms. Cerridwen did not provide sufficient evidence to demonstrate that these conditions are significant enough to negatively impact on her functioning.

[27] The Agency therefore finds that Ms. Cerridwen has not met her evidentiary burden of demonstrating the existence of an impairment as it relates to the problems with her feet, which is a prerequisite to a positive finding of disability for the purposes of Part V of the CTA. There is no need, therefore, for the Agency to consider whether Ms. Cerridwen has demonstrated the existence of the two other elements of disability, i.e., an activity limitation and a participation restriction in the context of bus travel.

CONCLUSION

[28] The Agency finds that Ms. Cerridwen has not provided sufficient evidence to demonstrate that, for the purposes of Part V of the CTA, she is a person with a disability due to the problems with her feet. As a result, the Agency will not address whether Ms. Cerridwen encountered an obstacle to her mobility. Therefore, the application is dismissed.

Member(s)

J. Mark MacKeigan
Geoffrey C. Hare
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