Decision No. 558-AT-MV-2004

October 21, 2004

Follow-up - Decision No. 429-AT-MV-2005

October 21, 2004

APPLICATION by Richard Marion pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, regarding the difficulties he experienced while at the domestic terminal taxi stand of the Vancouver International Airport on June 17, 2004.

File No. U3570/04-35


Application

[1] On June 24, 2004, Richard Marion filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

[2] On July 29 and 30, 2004, the Vancouver International Airport Authority (hereinafter the VAA) filed its answer to the application. Mr. Marion filed his reply on August 9, 2004.

Issue

[3] The issue to be addressed is whether the lack of policies and procedures and the lack of training constituted undue obstacles to Mr. Marion's mobility and, if so, what corrective measures should be taken.

Facts

[4] Mr. Marion is blind and uses a service animal.

[5] On June 17, 2004, Mr. Marion exited the Vancouver International Airport's (hereinafter the Vancouver airport) domestic terminal and proceeded to a taxi stand where the British Columbia Corps of Commissionaires (hereinafter the Commissionaires) assist passengers in arranging ground transportation. Mr. Marion requested a taxi from the Commissionaire on duty at the taxi stand. When Mr. Marion attempted to enter a taxi that was already waiting, he was told by the Commissionaire that this was not his taxi and that an accessible van had been requested for him. Mr. Marion was eventually permitted to take the taxi that was already waiting.

[6] The VAA has no formal or written policies and procedures related to the provision of ground transportation to persons with disabilities. Licences granted to ground transportation service providers by the VAA stipulate that the service provided must accommodate persons with disabilities.

[7] The Personnel Training for the Assistance of Persons with Disabilities Regulations, SOR/94-42 (hereinafter the Training Regulations) state, in part that:

4. Every carrier and terminal operator shall ensure that, consistent with its type of operation, all employees and contractors of the carrier or terminal operator who provide transportation-related services and who may be required to interact with the public or to make decisions in respect of the carriage of persons with disabilities receive a level of training appropriate to the requirements of their function in the following areas:

(a) the policies and procedures of the carrier or terminal operator with respect to persons with disabilities, including relevant regulatory requirements;

(b) the needs of those persons with disabilities most likely to require additional services, recognition of those needs, and the responsibilities of the carrier or terminal operator in relation to those persons, including the level of assistance, methods of communication and aids or devices generally required by persons with disabilities; and

(c) the necessary skills for providing assistance to persons with disabilities, including the role of the attendant, and the needs of persons with disabilities travelling with a service animal, including the role and the needs of that animal.

Positions of the parties

[8] Mr. Marion submits that when the Commissionaire at the taxi stand requested a taxi for him, he requested a "dog friendly" taxi as Mr. Marion had a service animal which was not in a cage. Mr. Marion informed the Commissionaire that all taxis were supposed to accept service animals. Mr. Marion adds that when he attempted to take a taxi that was already waiting, the Commissionaire informed him that this was not his taxi and that he was still waiting for the "special van" requested for him. Mr. Marion explained to the Commissionaire that he did not require an accessible van and that he could more easily get into a regular taxi. Mr. Marion claims that the Commissionaire reluctantly allowed him to take the taxi that was already there.

[9] Mr. Marion states that his issue is not with the taxi service itself, but rather with the apparent lack of training the Commissionaire seemed to have on disability issues and, specifically, with respect to persons travelling with service animals.

[10] The VAA states that its investigation shows that there was an inappropriate response given, however well intended; that this has revealed inadequacies with the previous training program; and that immediate steps have been taken to remedy the situation. The VAA also states that the Commissionaire meant no disrespect to Mr. Marion; apologizes for the inconvenience he experienced; and thanks him for raising the matter.

[11] The VAA states that its position is that persons with disabilities shall not be refused ground transportation services at the Vancouver airport and that no customer of Vancouver airport shall be refused ground transportation services, with notable exception to customers that are belligerent, violent or drunk. It further submits that Vancouver airport employees receive disability awareness training as is appropriate for their specific duties and responsibilities. In a submission dated July 30, 2004, the VAA states that its barrier-free consultant, Barrier Free Design Inc., is developing a training program that will be used to train contractors, consultants and service providers who interact with the public; that this program is intended to provide personnel with knowledge to properly and appropriately respond to persons with disabilities in any given situation; and that it will take approximately one month for Barrier Free Design Inc. to develop the training program. The VAA adds that Barrier Free Design Inc. will conduct the training and that details of the training program will be forwarded to the Agency.

[12] In response to the VAA's answer to his application, Mr. Marion states that policies should be developed with respect to the provision of ground transportation for persons who use service animals. Mr. Marion submits that he is pleased to see that Barrier Free Design Inc. is now developing a more comprehensive training program for Vancouver airport personnel and requests that he be provided an opportunity to review the training program and documentation.

Analysis and findings

[13] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.

[14] An application must be filed by a person with a disability or on behalf of a person with a disability. Mr. Marion is blind and uses a service animal and, as such, is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

[15] To determine whether there is an undue obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether the applicant's mobility was restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle was undue. In order to answer these questions, the Agency must take into consideration the particular facts of the case before it.

Whether the applicant's mobility was restricted or limited by an obstacle

[16] The word "obstacle" is not defined in the CTA. This implies that Parliament did not want to restrict the Agency's jurisdiction in view of its mandate to eliminate undue obstacles in the federal transportation network. Furthermore, the word "obstacle" lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement.

[17] In determining whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency looks to the travel experience of that person as expressed in the application. There is a broad range of circumstances where the Agency has found obstacles in the past. For example, there are cases of obstacles where the person was prevented from travelling, where the person was injured in the course of his or her travels (such as where the lack of appropriate accommodation during travel affects the physical condition of the passenger), or where the person was deprived of his or her mobility aid after the trip as a result of damage caused to the aid while it was being transported. Also, the Agency has found obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience were such as to detract from the person's sense of confidence, dignity, safety, or security, recognizing that these feelings may be such as to disincline a person from future travel.

The case at hand

Lack of policies and procedures

[18] The Agency recognizes the important role that accessible ground transportation plays in ensuring that travellers have access to seamless travel in the federal transportation network. The Agency notes that the VAA also recognizes the importance of accessible ground transportation and, in fact, stipulates in the licences granted to ground transportation service providers that the service provided must accommodate persons with disabilities. Further, while the VAA's position is that persons with disabilities should not be refused ground transportation services at the Vancouver airport, it has not implemented policies and procedures to ensure accessible ground transportation is available and that persons with disabilities are not, in fact, refused ground transportation.

[19] The Agency is of the opinion that policies and procedures regarding the provision of services to persons with disabilities are necessary to ensure that these services are provided in a consistent manner and that persons with disabilities have access to services that address their needs. The Agency notes that where there is an inconsistency in services, persons with disabilities have no assurance that their needs will be met, and that in turn results in anxiety and uncertainty as to whether the services will meet their needs. This inconsistency in services can ultimately lead persons with disabilities to feel disinclined to travel in the future.

[20] While Mr. Marion was ultimately provided with ground transportation that met his needs, the experience was such that it detracted from his travel experience, causing him frustration and creating a stressful situation.

[21] In light of the foregoing, the Agency finds that the VAA's lack of policies or procedures constituted an obstacle to Mr. Marion's mobility.

Lack of training

[22] The Agency notes that Mr. Marion requested a taxi from the Commissionaire at the domestic terminal taxi stand and, when doing so, he did not specifically request an accessible van or any other accommodation. Instead of entering into a dialogue to have a better understanding of Mr. Marion's needs and preferences regarding the type of vehicle that would have been most appropriate or desirable, the Commissionaire requested an accessible van and therefore made incorrect assumptions about Mr. Marion's abilities and preferences. The Commissionaire's apparent lack of training concerning the needs of persons with disabilities, and more specifically persons who use service animals, has been raised by Mr. Marion as being of particular concern.

[23] The Agency also notes that when Mr. Marion attempted to take a taxi that was already waiting, the Commissionaire told Mr. Marion that this was not his taxi and that he was still waiting for the "special van" that had been requested for him. With respect to an accessible van being provided for persons who are blind or visually impaired who use service animals, the Agency notes that due to raised floor/seat heights and differing floor/seat configurations, it may be more difficult for persons using service animals to enter and exit a van. In this regard, the Agency notes that Mr. Marion informed the Commissionaire that he did not need the van and could more easily get his service animal into the taxi that was already there.

[24] The Agency notes that there are many facets to the provision of services to persons with disabilities. The Agency has long recognized the importance of training by ensuring that employees and contractors who provide different types of transportation-related services to persons with disabilities are properly trained to do so. To this end, the National Transportation Agency, the Agency's predecessor, promulgated the Training Regulations effective January 26, 1995.

[25] The Agency notes the VAA's submission wherein it stated that the Vancouver airport employees receive disability awareness training as is appropriate for their specific duties and responsibilities. The VAA stated that, subsequent to Mr. Marion's application, its barrier-free consultant, Barrier Free Design Inc., is developing a training program that will be used to train contractors, consultants and service providers who interact with the public and that this program is intended to provide personnel with knowledge to properly and appropriately respond to persons with disabilities in any given situation. However, it is apparent that no training had been provided to the Commissionaire responsible for arranging ground transportation at the Vancouver airport.

[26] While Mr. Marion was ultimately provided with ground transportation that met his needs, the Agency is of the opinion that the lack of training contributed to the insensitive and inappropriate manner in which Mr. Marion was treated by the Commissionaire, which detracted from Mr. Marion's travel experience and created a stressful situation.

[27] In light of the foregoing, the Agency finds that the lack of training provided to contractors, consultants and service providers who interact with the public, constituted an obstacle to Mr. Marion's mobility.

Whether the obstacle was undue

[28] As with the term "obstacle", the term "undue" is not defined in the CTA in order to allow the Agency to exercise its discretion to eliminate undue obstacles in the federal transportation network. The word "undue" also lends itself to a broad meaning; it is commonly understood to mean exceeding or violating propriety or fitness; excessive; inordinate; disproportionate. As something may be found disproportionate or excessive in one case and not in another, the Agency must take into account the context in which the allegation that an obstacle is undue is made. Under this contextual approach, the Agency must strike a balance between the rights of passengers with disabilities to use the federal transportation network without encountering undue obstacles and the carriers' commercial and operational considerations and responsibilities. This interpretation is in keeping with the national transportation policy set out in section 5 of the CTA and more particularly in subparagraph 5(g)(ii) of the CTA where it is stated inter alia that conditions under which carriers or modes of transportation operate must, as far as is practicable, not constitute an undue obstacle to the mobility of persons with disabilities.

[29] While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federal transportation network to adapt their services, as far as is practicable, to the needs of persons with disabilities. There are however some impediments that have to be taken into consideration, such as security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact of adapting services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board in their own wheelchair, they may have to arrive at a terminal earlier to allow time for boarding, and they may have to wait for a longer period of time for deboarding assistance than persons without disabilities. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments that transportation service providers will encounter in trying to meet the needs of persons with disabilities. A balance has to be struck between the various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concept of undueness.

The case at hand

[30] Having determined that the VAA's lack of policies and procedures regarding the provision of ground transportation services to persons with disabilities and the lack of training provided to contractors, consultants and service providers who interact with the public constituted obstacles to Mr. Marion's mobility, the Agency will now consider whether the obstacles were undue.

Lack of policies and procedures

[31] The Agency is of the opinion that transportation providers, such as the VAA, need to have in place policies and procedures and communicate these to their personnel to afford them with guidance concerning the provision of services to persons with disabilities, including accessible ground transportation, and in order to ensure that services to persons with disabilities are provided in a consistent manner. Further, transportation providers must have policies and procedures to ensure that their personnel have all of the information that they require so that they may carry out their duties properly.

[32] In this regard, the Agency points out that paragraph 4(a) of the Training Regulations requires that training on the policies and procedures of the carrier or terminal operator with respect to persons with disabilities, including regulatory requirements, be provided to employees and contractors who provide transportation-related services, interact with the public or make decisions with respect to the carriage of persons with disabilities. In order to provide such training, it is imperative that the transportation provider institute formal policies and procedures. The Agency recognizes that the VAA has a broad policy in that persons with disabilities shall not be refused ground transportation services. However, the Agency is of the opinion that the VAA needs specific policies and procedures that provide guidance on the responsibilities of ground transportation service providers with respect to the provision of services to persons with disabilities and on the manner in which such services are to be provided. Furthermore, while the Agency recognizes that licences granted to ground transportation service providers by airport authorities serve a useful purpose, the Agency is of the opinion that they do not take the place of policies and procedures concerning the provision of services to persons with disabilities. In this case, the VAA has acknowledged that there are no formal policies and procedures in place related to the provision of ground transportation to persons with disabilities and has assumed responsibility for training contractors, consultants and others who interact with the public.

[33] Based on the foregoing, the Agency finds that the VAA's lack of policies and procedures regarding the provision of ground transportation to persons with disabilities constituted an undue obstacle to Mr. Marion's mobility.

Lack of training

[34] The Agency is of the opinion that awareness of and sensitivity to the needs of persons with disabilities and the assistance required by these persons when they travel can be improved by the training of personnel, and that, conversely, the lack of training can result in obstacles to their mobility. In this case, the Agency is of the opinion that a lack of appropriate training may have precipitated the lack of sensitivity demonstrated by the Commissionaire while assisting Mr. Marion at the domestic terminal taxi stand.

[35] The Agency notes that Vancouver airport employees receive disability awareness training appropriate for their specific duties and responsibilities. However, as noted previously, it is apparent that contractors, consultants and others who interact with the public, including Commissionaires who provide assistance with ground transportation, have not been provided with the requisite training. While the Agency accepts that the VAA provides disability awareness training to its own employees, the Agency is concerned that the VAA has not given its contracted service providers, who interact with the public, training similar to that provided to employees. The Agency further notes that the VAA has acknowledged that an inappropriate response was given by the Commissionaire and that there were inadequacies with the previous training program provided to personnel concerning the assistance provided to persons with disabilities. Furthermore, the VAA has assumed the responsibility for training contractors, consultants and others who interact with the public.

[36] The Agency points out that section 4 of the Training Regulations requires, in part, that all employees and contractors receive a level of training appropriate to the requirements of their function. The Agency is of the opinion that the provision of adequate and appropriate training to the Commissionaires working at the terminal taxi stand may have prevented the difficulties experienced by Mr. Marion.

[37] The situation faced by Mr. Marion at the Vancouver airport illustrates what can occur when the terminal operator does not make clear, through appropriate training, the needs of passengers with disabilities and it also highlights the importance of entering into a dialogue with the passenger to clarify those needs.

[38] In light of the foregoing, the Agency finds that the VAA's failure to provide training to its contractors and consultants concerning the provision of services to persons with disabilities constituted an undue obstacle to Mr. Marion's mobility.

[39] Furthermore, the Agency notes that the lack of training for contractors, consultants and service providers who interact with the public is contrary to section 4 of the Training Regulations. The VAA, therefore, failed to ensure that all of its employees and contractors who provide transportation-related services and who may be required to interact with the public or to make decisions with respect to the carriage of persons with disabilities received training, in that it only ensured its employees were trained.

[40] As a result of this application, the VAA took immediate steps to address Mr. Marion's concerns regarding the accessibility training it provides. The Agency acknowledges that the Vancouver airport's barrier-free consultant, Barrier Free Design Inc., is developing a training program that will be used to train contractors, consultants and service providers who interact with the public. This program is intended to provide personnel with knowledge to properly and appropriately respond to persons with disabilities in any given situation and Barrier Free Design Inc. will take approximately one month to develop the training program. The Agency also notes that Barrier Free Design Inc. will conduct the training and that details of the training program will be forwarded to the Agency.

[41] The Agency notes the measures taken by the VAA which, in the Agency's opinion, should enhance the VAA's capacity to deliver services to persons with disabilities and the quality of services delivered, hence the quality of travel, for persons with disabilities. In this regard, the Agency draws the VAA's attention to the Schedule in section 11 of the Training Regulations, which the VAA's new training program is required to incorporate, and to the subject matter specified in sections 4 through 7 of the Training Regulations, as set out above.

Conclusion

[42] Based on the foregoing, the Agency finds that the VAA's lack of policies and procedures concerning the provision of ground transportation services to persons with disabilities and the lack of training provided to ground transportation service providers, constituted undue obstacles to Mr. Marion's mobility. The VAA is hereby required to:

  • Create policies and procedures regarding the provision of ground transportation to persons with disabilities and advise the Agency of how the VAA intends to make employees, contractors, consultants and service providers who interact with the public aware of these policies and procedures immediately following the approval of such policies and procedures by the Agency;
  • Provide the Agency with a copy of its newly developed training program intended for contractors, consultants and service providers who interact with the public, which must cover the subject matter specified in sections 4 to 7 of the Training Regulations in addition to the information set out in the Schedule in section 11 of the Training Regulations; and,
  • Issue a bulletin to all contractors, consultants and service providers who interact with the public, summarizing the incident experienced by Mr. Marion, without identifying him, highlighting that persons with disabilities have specific needs, the importance of being aware and sensitive to the needs of persons with disabilities, and stressing the importance of entering into a dialogue with persons with disabilities to ensure that their preferences and abilities with respect to the services being provided are clearly understood.

[43] The VAA is required to issue the bulletin within thirty (30) days from the date of this Decision, and provide a copy to the Agency. With respect to the remaining corrective measures, the VAA is required to submit copies of the above-noted materials, in draft form, within ninety (90) days from the date of this Decision and to obtain the Agency's written approval thereon, prior to VAA's finalization of the above-noted corrective measures. The Agency will review these materials and advise the VAA whether they are satisfactory, as well as indicate the time frames within which the corrective measures must be finalized.

[44] Following a review of the measures taken by the VAA, the Agency will determine whether further action is required.

Members

  • Marian L. Robson
  • Guy Delisle
  • Baljinder Gill
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