Decision No. 431-AT-MV-2008

August 20, 2008

August 20, 2008

APPLICATION by Amalgamated Transit Union Local 279 regarding the accessibility of OC Transpo bus service to visually and hearing impaired passengers.

File No. U3570/08-3


BACKGROUND

[1] The Canadian Transportation Agency (the Agency) received an application from Amalgamated Transit Union (ATU) Local 279. ATU Local 279 submits that the failure of the City of Ottawa to purchase and install an automated announcement system for stops for its bus fleet has resulted in continued barriers and has created an undue obstacle for "disabled members of the community" who utilize OC Transpo.

PRELIMINARY MATTER

Standing before the Agency

[2] The Agency must consider whether it will inquire into ATU Local 279's application pursuant to Part V of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA). A fundamental issue to be determined first is whether ATU has legal standing to file an application in this case and whether the Agency should exercise its discretion, as set out in subsection 172(1) of the CTA, to inquire into this matter.

[3] Standing may be acquired in one of two ways: as a right ("direct personal interest standing") or with leave of the Agency upon a question of public interest ("public interest standing").

[4] It is a fundamental principle of law that unless a party can demonstrate a sufficient stake in the issue to support its participation in a proceeding, a tribunal will rule that the party lacks standing or locus standi.

[5] The issue in this application is whether persons with disabilities encounter undue obstacles by not being provided with an appropriate level of accommodation.

[6] In cases of this kind, the Agency has recognized that persons with disabilities who submit that they have faced an undue obstacle have an interest to seek the removal of the undue obstacle. It has also been accepted that such a request may be filed on behalf of persons with disabilities.

[7] However, to ensure that an application properly represents the perspective of persons with disabilities, it is important for the Agency to grant standing only to those with similar interests. Consequently, the Agency is of the opinion that an applicant must demonstrate that it undoubtedly represents the interests of persons with disabilities.

[8] It is clear from the application that ATU Local 279 has a mandate to represent employees of OC Transpo and intends to seek redress on their behalf to ensure that their health and safety concerns are taken into account. However, there is no evidence that ATU Local 279 has any mandate to represent persons with disabilities.

[9] This alone supports the conclusion that the applicant has no direct personal interest in the issue and no standing in this matter.

[10] It may also be argued by ATU Local 279 that even without a sufficient direct personal interest, it should be afforded public interest standing to pursue the application.

[11] The Supreme Court of Canada addressed the issue of public interest standing in a series of cases culminating in Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607. It was determined that the approach to public interest standing reflected in Supreme Court of Canada decisions related to constitutionality issues in Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138, Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265 and Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575 should be extended to non-constitutional administrative issues. Those cases laid down three criteria or tests to establish grounds for public interest standing for a party to pursue an issue, namely: (1) there is a serious issue raised; (2) the applicant has established it is directly affected by the issue or, if not, has a genuine interest in the issue; and, (3) there is no other reasonable and effective way to bring the issue to court.

[12] In this application, it is arguable that the issues raised are serious and that ATU Local 279 has a genuine interest in those issues. However, ATU Local 279 fails to meet the third test. The key concerns raised by ATU Local 279 in its application relate to the workplace health and safety of its members and how that may impact persons with disabilities travelling on OC Transpo buses. ATU Local 279 has recourse to other remedies to address its key concerns. Further, the parties to Decision No. 200-AT-MV-2007 relating to the application filed by Terrance J. Green have recourse to section 32 of the CTA which provides for an application to be made to the Agency for a review of the Decision if there has been a change in the facts or circumstances.

[13] The Agency also notes that its enforcement division is currently conducting an investigation for the purpose of assessing OC Transpo's compliance with the corrective action ordered in the Decision.

CONCLUSION

[14] The Agency will not exercise its discretion to inquire into this matter based on the application of ATU Local 279 and dismisses this application for lack of standing.

Members

  • Raymon J. Kaduck
  • John Scott
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