Decision No. 58-AT-R-2018

October 9, 2018

APPLICATION by Marie Murphy and Martin Anderson (applicants) 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: 
16-02732

SUMMARY

[1] The applicants, who frequently travel with VIA, both need to use scooters as a result of disabilities. The applicants submit that for years, they have been experiencing difficulties in travelling together with their scooters on VIA’s passenger trains, and that VIA’s policy, which provides for one scooter to be stored in the wheelchair tie-down area within the passenger compartment and the other scooter to be stored in the baggage module, results in an obstacle and should be replaced with a policy that allows for the storage of two scooters in tie-down areas.

[2] The Canadian Transportation Agency (Agency) will address the following issues:

  1. Has VIA confirmed, pursuant to Decision No. LET-AT-R-67-2017 (Interim Decision), that no consultations were conducted in relation to the storage of two scooters in one tie-down area?
  2. Has VIA provided, pursuant to the Interim Decision, clear guidance to personnel across its entire network who may be required to provide service to persons with disabilities on the content and application of relevant regulations, codes, policies and procedures, consistent with the Personnel Training for the Assistance of Persons with Disabilities Regulations, SOR/94-42, as amended (Personnel Training Regulations), and ensured that the related requirements are properly applied by its personnel?
  3. Has VIA revised its policy to provide for the storage of two scooters in one tie-down area or the assurance that each train has at least two tie-down areas, consistent with Decision No. 29-AT-R-2017 dated February 15, 2017 (Original Decision) or, alternatively, established that its modified proposal to remove the obstacle constitutes a reasonable accommodation measure in the circumstances?
  4. Should costs be awarded?

[3] For the reasons set out below, the Agency finds that:

  1. VIA has confirmed that no consultations were conducted in relation to the storage of two scooters in one tie-down area.
  2. VIA has complied with the requirement to provide clear guidance to personnel across its entire network.
  3. The accommodation measures proposed by VIA are reasonable in the circumstances and remove the obstacle.
  4. The applicants should be awarded costs.

BACKGROUND

[4] In the Original Decision, the Agency found that the difficulty for the applicants to travel together with their mobility aids properly stored on VIA’s passenger trains constituted an obstacle to their mobility and that of other persons with similar disabilities. The Agency ordered VIA to take the following steps by May 15, 2017:

  • Provide clear guidance to all employees who may be required to provide service to persons with disabilities on the content and application of relevant regulations, codes, policies and procedures, consistent with the Regulations, and ensure that the related requirements are properly applied by its personnel.
  • Provide a copy of the final report from the study on the possibility of storing two scooters in one wheelchair tie-down area and a summary of the results of all required consultations to the Agency and the applicants.
  • Either revise the Policy to provide for the storage of two scooters in one tie-down area or the assurance that each train has at least two tie-down areas or, alternatively, submit evidence to the Agency that neither of these revisions can be implemented without causing undue hardship.

[5] On May 15, 2017, VIA responded to the above, and on May 24, 2017, the applicants filed a reply. On June 23, 2017, the Agency required that VIA confirm certain information in respect of the accommodation measures that it proposed in response to the Original Decision. Further to this requirement, the parties filed several additional submissions and requests.

[6] On November 1, 2017, the Agency issued the Interim Decision wherein it determined that:

  • While VIA indicated that it was waiting for the Agency’s approval of the revised policy to provide clear guidance to its personnel, this requirement was to be completed by May 15, 2017, irrespective of the Agency’s approval of the revised policy; and while VIA indicated that the guidance was only to be provided in the Québec-Windsor corridor, the Agency’s order was not limited to this section of VIA’s network.
  • VIA had not provided the required summary of any related consultations, though its statement that “no other report or material in this regard exists” may have been an indication that none have been conducted.
  • VIA had been given until May 15, 2017 to revise the policy in accordance with the Agency’s order or file arguments on undue hardship, but had done neither.

[7] In light of the above, VIA was directed, by January 3, 2018, to:

  • Provide clear guidance to personnel across its entire network.
  • Comply with the order in the Original Decision, either by making the required policy changes across its network or by submitting an explicit claim of undue hardship, supported by clear and detailed evidence.

[8] VIA was also ordered to confirm, by November 16, 2017, that no consultations were conducted in relation to the storage of two scooters in one tie-down area, and make a submission on whether the circumstances justify the awarding of interim costs to the applicants.

[9] Pleadings in response to the Interim Decision were completed on March 8, 2018. On April 16, 2018, VIA filed a request to introduce new evidence. The Agency granted VIA’s request, and addressed additional questions to VIA relating to the new evidence added on file. Final pleadings were closed on June 29, 2018.

THE LAW

[10] The application was filed pursuant to subsection 172(1) of the CTA, which states “The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.”

HAS VIA CONFIRMED, PURSUANT TO THE INTERIM DECISION, THAT NO CONSULTATIONS WERE CONDUCTED IN RELATION TO THE STORAGE OF TWO SCOOTERS IN ONE TIE-DOWN AREA?

VIA’s position

[11] In response to the Agency’s requirement for confirmation that no consultations were conducted in relation to the storage of two scooters in one tie-down space, VIA filed a number of reports on the possibility of storing two scooters in one tie-down area:

  • a draft report dated June 25, 2015 entitled “Testing the accommodation of two three-wheeled scooters in the same wheelchair location in a LRC business car”;
  • a revised report dated August 25, 2015 entitled “Pilot Test of Two Unsecured Scooters Onboard LRC Business train #52”;
  • a final report dated June 26, 2017 entitled “Testing of two unoccupied three-wheeled scooters in the same wheelchair location on various VIA Rail cars”; and,
  • a draft report dated August 21, 2017 entitled “Observations regarding the storage of a three-wheeled scooter in the LRC economy coach baggage tower”.

[12] VIA explains that its testing program was halted upon receipt of the application before the Agency, and has resumed following “the decision”.

Analysis and Determinations

[13] The Agency accepts the filing of the different studies by VIA, and accepts VIA’s reference to its testing program having been halted as a confirmation that no consultations were conducted in relation to the storage of two scooters in one tie-down area.

[14] In light of VIA’s proposed accommodation measures and the Agency’s final decision on these measures as set out below, no further action is required from VIA in this regard.

HAS VIA PROVIDED CLEAR GUIDANCE TO PERSONNEL ACROSS ITS ENTIRE NETWORK WHO MAY BE REQUIRED TO PROVIDE SERVICE TO PERSONS WITH DISABILITIES ON THE CONTENT AND APPLICATION OF RELEVANT REGULATIONS, CODES, POLICIES AND PROCEDURES, CONSISTENT WITH THE PERSONNEL TRAINING REGULATIONS, AND ENSURED THAT THE RELATED REQUIREMENTS ARE PROPERLY APPLIED BY ITS PERSONNEL?

VIA’s position

[15] VIA submits that in early January 2018, the totality of its front-line employees working in stations, on board trains, and in customer centers across Canada received training on how to assist persons with disabilities. VIA also submits that the following two sessions met the Agency’s training requirements:

  • Refresher Session for VCC Employees: Reminders on how to assist people with disabilities; Best practices; Importance of sensitivity when dealing with invisible disabilities; Scented products reaction policy;
  • Refresher Session for On-Train Services and Stations Employees: Reminders on how to assist people with disabilities; Best practices; Importance of sensitivity when dealing with invisible disabilities; Scented products reaction policy; Procedures for use of escalators when assisting persons who are visually impaired; Transferring from a wheelchair to a seat.

Analysis and Determinations

[16] The Agency required that VIA provide clear guidance to all its employees who may be required to provide services to persons with disabilities on the content and application of relevant regulations, codes, policies and procedures, consistent with the Personnel Training Regulations, and ensure that the related requirements are properly applied by its personnel.

[17] VIA confirmed that its personnel across Canada were provided with refresher disability-related training in January 2018. The content of the training provided by VIA appears to be in line with the training requirements set out in section 4 of the Personnel Training Regulations – Employees and Contractors Who Interact with the Public, and Section 5 of the Personnel Training Regulations – Employees and Contractors Who Provide Physical Assistance. Any further compliance monitoring will be completed by the Agency’s Compliance Monitoring and Enforcement Directorate.

HAS VIA REVISED ITS POLICY TO PROVIDE FOR THE STORAGE OF TWO SCOOTERS IN ONE TIE-DOWN AREA OR THE ASSURANCE THAT EACH TRAIN HAS AT LEAST TWO TIE-DOWN AREAS, CONSISTENT WITH THE ORIGINAL DECISION OR, ALTERNATIVELY, ESTABLISHED THAT ITS MODIFIED PROPOSAL TO REMOVE THE OBSTACLE CONSTITUTES A REASONABLE ACCOMMODATION MEASURE IN THE CIRCUMSTANCES?

[18] As indicated in The Law section above,when it is determined that the applicant is a person with a disability and that they encountered an obstacle, the Agency provides the respondent with an opportunity to explain how it proposes to remove the obstacle through a general modification to the rule, policy, practice, or physical structure or, if a general modification is not feasible, an individual accommodation measure.

[19] In this case, VIA has described the accommodation measures that it proposes to remove the obstacle by corridors of its network. The Agency will therefore first assess the accommodation measures for each of the corridors.

Accommodation measures proposed by VIA

[20] VIA has presented as follows the accommodation measures that it proposes by corridor of its network: .

QUÉBEC–WINDSOR

[21] The train consist on this corridor is comprised of HEP II accessible coach cars. VIA has implemented changes to enlarge the tie-down area in those cars to allow for the safe storage of two scooters. When the train consist is comprised of Renaissance equipment where only one scooter can be stored in a tie-down area, VIA will add a second accessible Renaissance coach car to the train consist to allow for the storage of a second scooter in the tie-down area of the that car.

[22] On March 19, 2018, Transport Canada issued a news release to announce the renewal of VIA’s fleet in the Québec-Windsor corridor. The announcement sets out that VIA’s new trains will have a minimum of three wheelchair tie-down areas, with two tie-down areas in the same car.

TORONTO–VANCOUVER (THE CANADIAN)

[23] HEP I accessible coach cars are used on this corridor and their tie-down area can accommodate one qualified three-wheeled scooter of maximum dimensions of 23 ¾ x 47 inches. On train consists with two HEP I accessible coach cars, each passenger travelling with a scooter will be assigned the tie-down area in each coach car.

[24] In off-peak periods, when there is only one HEP I accessible car in the train consist, the second passenger using a scooter will be:

  • assigned the accessible cabin in the HEP I Park Prestige car where the scooter will be secured by a strap to the wheelchair anchor point in the cabin; or,
  • offered to store their scooter in the baggage car, unfolded, fully assembled and untouched by other passengers.
MONTRÉAL–HALIFAX (THE OCEAN)

[25] The train consist on this corridor usually includes only one accessible Renaissance Ocean coach car that can store one scooter. The second passenger will either be:

  • assigned to the accessible cabin in the Renaissance sleeper car where the scooter will be secured by a strap to the wheelchair anchor point; or,
  • offered to store their scooter in the baggage car, unfolded, fully assembled and untouched by other passengers.
SUDBURY–WHITE RIVER (REGIONAL)

[26] On this corridor, an RDC accessible coach car forms a single car train. The first scooter will be stored in the tie-down area of the car, and the second scooter will be secured in the galley area with a wheelchair anchor point.

WINNIPEG–CHURCHILL (REGIONAL)

[27] All train consists on this corridor include two HEP I accessible coach cars, such that each passenger’s scooter of maximum dimension of 23 ¾ x 47 inches will be stored in a tie-down area.

JASPER–PRINCE RUPERT (REGIONAL) AND MONTRÉAL–JONQUIÈRE–SENNETERRE (REGIONAL)

[28] When the train consist on the Jasper–Prince Rupert corridor includes one HEP I Septa accessible coach car, VIA will accommodate two passengers travelling together with their scooters by adding a second HEP I accessible coach car to the train consist before its departure from Jasper, provided that VIA is advised at least 48 hours prior to departure from the route originating point.

[29] The train consist on the Montréal–Jonquière–Senneterre corridor usually includes two HEP I Septa accessible coach cars between Montréal and La Tuque. Therefore, on that portion of the corridor, a scooter will be stored in the tie-down area of each of the two accessible coach cars. At Hervey Junction near La Tuque, the train consist divides: one section proceeds to Jonquière and the second to Senneterre. As such, when a reservation is made for the storage of two scooters beyond La Tuque, VIA will add a second HEP I accessible coach car to the train consist before its departure from Montréal, provided that VIA is advised at least 48 hours prior to departure from the route originating point.

[30] When two passengers travelling each with a scooter embark at locations other than Jasper or Prince Rupert for the first corridor, or beyond La Tuque for the second corridor, and reserve after the departure of the train from the originating point of each corridor, the second passenger travelling with a scooter will have the choice to:

  • make a new reservation seven days prior to departure to allow sufficient time to add a second accessible coach car at Jasper or Montréal. Passengers will be advised at the time of reservation when the next train with two tie-down areas will be available, normally within 48 hours, but possibly with a delay of up to seven days depending on the day of the week and the origin and destination of the passengers; or,
  • store their scooter in the baggage car, unfolded, fully assembled and untouched by other passengers.

[31] To illustrate a situation where the seven-day advance notice would be required, VIA gives the example of a train that leaves from Jasper at noon and arrives at Prince Rupert on the following day (with an overnight stop in Prince George). VIA explains that the resulting round trip is at least four days long, which is also the time that it would take before the train returns to base at Jasper to add the second HEP I car to the train consist. VIA explains that it may take more than four days considering that there are only three departures from Jasper or Prince Rupert per week.

[32] VIA also points to the fact that a baggage car service is available year-round on these routes, such that passengers who cannot wait for a train to return to base may choose to store their scooters in the baggage car, unfolded, fully assembled and untouched by other passengers.

[33] VIA adds that the deployment of new cars on its fleet will begin in 2020, and more specifically as it relates to the above two corridors, VIA indicates that:

  • 2 HEP III cars will be deployed on the Montréal–Jonquière–Senneterre corridor during Phase 1 of the project, following which accommodation of two passengers travelling with qualified scooter mobility devices will be provided when a 48-hour advance notice is given; and,
  • 15 HEP III cars will be deployed on VIA’s long-haul routes, including the Jasper–Prince Rupert corridor, during Phase 2 of the project, following which accommodation of two passengers travelling with qualified scooter mobility devices will be provided when a 48‑hour advance notice is given.

VIA’s position

TYPES OF MOBILITY AIDS

[34] VIA indicates that its revised policy applies specifically to scooter mobility devices, as required by the Original Decision. VIA adds that all testing, measurement and feasibility studies in this case have been based on three-wheeled scooters of the type and size used by the applicants.

[35] VIA submits that it cannot be expected to accommodate “any combination of two mobility aids”, as requested by the applicants, given that the manufacturing of scooters is not standardized.

DIMENSIONS OF SCOOTERS

[36] VIA submits that it is impossible to anticipate all possible dimensions of scooter mobility devices. VIA explains that the dimensions of scooters that it accepts on board its trains are based on the testing performed by an acknowledged expert in accessibility issues as it relates to public transportation. The expert report entitled “Summary of test results to board and accommodate one three-wheeled scooter onboard VIA accessible coaches” sets out the following reasons for the dimensional limits of scooters accepted on VIA’s trains:

  • The present station-based lifts in operation by VIA cannot accommodate scooters of dimensions greater than 47 inches in length and 25 inches in width.
  • HEP I Economy, HEP II and LRC accessible business coach cars have narrower vestibules that barely allow the manoeuver of a three-wheeled scooter of 47 inches in length.
  • Accessible REN, HEP I, HEP II and LRC coach cars offer a limited manoeuvring space in and out of the wheelchair location.
  • HEP I cars can only accommodate scooters with a width less than 23 3/4 inches due to the width of the end door, that cannot be changed due to the structural bulkhead surrounding the opening.
JASPER–PRINCE RUPERT CORRIDOR AND MONTRÉAL–JONQUIÈRE–SENNETERRE CORRIDOR

[37] VIA submits that “never has there been two persons with disabilities travelling together on the same consist in these corridors”. VIA submits that it received only six accommodation requests on regional routes in 2017, such that a request by two passengers requiring the accommodation of scooter mobility devices within one train consist on a regional route will probably never occur.

[38] VIA adds that the need for two passengers, each travelling with a scooter, to provide more than 48 hours of advance notice will only arise in “certain exceptional circumstances”. VIA considers that it is very unlikely that two passengers travelling together with scooters would embark elsewhere than at originating points of the two corridors in question. As such, VIA submits that there will always be sufficient time between the time of the reservation and the time the train departs – when at least 48 hours of advance notice is provided – to add a second HEP I coach car to the train consist. VIA adds that 90 percent of all bookings are made more than seven days prior to departure.

[39] VIA claims that permanently adding a second HEP I accessible coach car to all train consists on the Jasper–Prince Rupert and Montréal–Jonquière–Senneterre corridors would be unreasonable. VIA submits that the added accessible coach car would “never be used”, and would not be available on other corridors, thereby limiting the accessibility. VIA estimates the cost of adding a car to all trains on these two corridors to be in excess of $490,000 annually in increased fuel, maintenance, wear and tear and labour costs.

[40] VIA submits that its proposed solution is not an undue obstacle as it is founded on reasonable and justifiable operational and cost considerations. In that regard, VIA submits that the Supreme Court of Canada jurisprudence sets out that “undue hardship can be established where such steps as may be reasonable to accommodate without undue interference in the operation of the employer’s business and without undue expense to the employer have been taken”.

FLEET RENEWAL

[41] VIA argues that the announcement of the renewal of its fleet demonstrates that VIA is going beyond the requirements of the currently applicable Passenger Rail Car Accessibility and Terms and Conditions of Carriage by Rail of Persons with Disabilities (Rail Code), and those ordered by the Agency in the Original Decision. VIA indicates that accessibility for multiple travellers with wheelchairs will be one of the key requirements of this project.

The applicants’ position

TYPES OF MOBILITY AIDS

[42] The applicants interpret the reference to “persons with similar disabilities” in the Original Decision to include persons using a variety of mobility devices, including electric wheelchairs and four‑wheeled scooters.

[43] The applicants argue that VIA offers no compelling justification to explain why its proposed accommodation measures are limited to three-wheeled scooters as opposed to any combination of two mobility aids that can be safely stored in one tie-down area. The applicants submit that to accept VIA’s approach would result in only a small margin of mobility aid users benefitting from VIA’s proposed revised policy. They state that the Canada Standards Association (CSA) provides clear dimensions for mobility devices in CAN/CSA-B651-95 Barrier-Free Design: A National Standard of Canada, and submit that VIA should be expected to comply with these standards.

DIMENSIONS OF SCOOTERS

[44] The applicants submit that VIA provides no clear and detailed evidence of the implications in modifying REN, RDC, HEP I and HEP II train cars to accept scooters of all dimensions. The applicants add that the expert report provides no opinion on the feasibility of replacing or refurbishing VIA’s train stock and lifts to “accommodate scooters, not simply three-wheeled scooters convenient to VIA”.

[45] The applicants also submit that VIA’s past actions have proven that it is in fact feasible to reconfigure tie-down areas on existing train stock. For example, despite advising that it would take years to reconfigure tie-down areas on existing trains, VIA was able to modify HEP II cars within a matter of months in an earlier stage of this case.

JASPER–PRINCE RUPERT AND MONTRÉAL–JONQUIÈRE–SENNETERRE CORRIDORS

[46] The applicants understand VIA’s position to be that not enough people are facing the obstacle to warrant accessibility throughout VIA’s entire network. They submit that VIA wrongly presumes that the duty to accommodate is driven by historical demand rather than by capacity and policy considerations. The applicants submit that even if data about usage of an inaccessible system could be relied upon, it would be contrary to the spirit of the Original Decision that recognizes the national scope of the obstacle faced by the applicants and persons with similar disabilities.

[47] The applicants submit that VIA’s argument about the cost of adding a second HEP I car on some train consists is not supported by clear and detailed evidence. The applicants argue that the amount estimated by VIA, i.e. $490,000, must be set in context as it represents approximately 0.0008 percent of VIA’s $600 million dollar annual operating budget.

[48] The applicants submit that VIA’s submissions lack independent expert evidence demonstrating that compliance with the Agency’s order would cause it “undue interference with the operation of [its] business”, or proof that the government was asked to underwrite the costs of compliance and refused. The applicants submit that, had VIA provided such evidence, they could have retained experts of their own to challenge it.

FLEET RENEWAL

[49] The applicants argue that VIA’s fleet renewal announcement is irrelevant because the implementation schedule and related accessibility implications are undefined beyond a proposed start date for the deployment of the new cars. Also, the applicants argue that the announcement is premature given that future train accessibility should be examined based on forthcoming standards being developed through the Agency’s Regulatory Modernization Initiative (RMI).

[50] Nonetheless, the applicants are prepared to accept a delay in the implementation of VIA’s revised policy to take into account the proposed retrofit and deployment of new trains, provided that the project is completed within suitable time periods. The applicants request, however, that the Agency clearly delineates the exceptions to the Original Decision as follows:

    • VIA must ensure that the retrofits and the new trains incorporate two tie-down areas for all CSA recognized mobility devices on all routes.
    • The proposed retrofits and deployment of new cars are to be completed by no later than June 30, 2020.
    • If any variations or delays occur, VIA must apply to the Agency, on notice to the applicants and the Council of Canadians with Disabilities, for a variation in the Agency’s order.
    • In the interim, VIA must be required to allow the storage of two mobility aids in a tie-down area where possible, or be required to add another tie-down area where it is given 48 hours of advance notice.

Analysis and Determinations

[51] The duty to accommodate up to the point of undue hardship helps ensure that the fundamental right of persons with disabilities to accessible transportation services is realized through concrete action. The obligations stemming from the duty to accommodate depend on the particular circumstances of each situation.

[52] For the Québec–Windsor and the Winnipeg–Churchill corridors, the measures that VIA proposes allow for the storage of two scooters in one, or in two tie-down areas on the train. The Agency finds that this measure allows for the removal of the obstacle on these corridors.

[53] For the Sudbury–White River corridor, VIA proposes that one scooter be stored in a tie-down area, and that the second scooter be secured in the galley with a wheelchair anchor point. The Agency accepts that a wheelchair anchor point is similar in nature to a tie-down area, and serves the same purpose. The Agency therefore finds that the proposed measure allows for the removal of the obstacle on that corridor.

[54] For the Toronto–Vancouver corridor, each passenger travelling with a scooter will be assigned the tie-down area in one of the two HEP I accessible coach cars. In off-peak periods, VIA proposes to assign to the second passenger the accessible cabin of the HEP I Park Prestige car (or the Renaissance car) where the scooter will be secured by a strap to the wheelchair anchor point. Similarly, for the Montréal – Halifax (The Ocean) corridor, the second passenger will be assigned the accessible cabin in the Renaissance sleeper car where the scooter will be secured by a strap to the wheelchair anchor point. The Agency finds that the proposed measures allow for the removal of the obstacle on these corridors.

[55] On the Montréal–Jonquière–Senneterre corridor, the train consist usually includes two HEP I accessible coach cars between Montréal and La Tuque, which will allow for the storage of two scooters, each in a tie-down area. For the Jasper–Prince Rupert corridor and the Montréal–Jonquière–Senneterre corridor beyond La Tuque, in situations where two passengers travelling each with a scooter make a reservation at least 48 hours in advance of the train departure from the originating point of the route, a second accessible car will be added to the train consist. Each scooter will therefore be stored in a tie-down area.

[56] When two passengers travelling each with a scooter make a reservation after the train departure from its originating point on these two corridors, the second passenger travelling with a scooter will have to make a new reservation seven days prior to departure. This seven-day advance notice is more burdensome on persons with disabilities than the generally accepted standard of 48 hours of advance notice. The additional time required to provide the accommodation measure is attributable to the availability of the train service on VIA’s corridors, more specifically as it relates to the number of departures per week, which is limited to three, and the number of days required for the train consist to return to base after a round-trip. Also, these two corridors have minimal traffic and the available evidence suggests that there is almost no demand on them for accommodation measures from scooter users travelling together. A situation where a seven-day advance notice would be required therefore appears to be highly improbable.

[57] Alternatively, when two passengers travelling each with a scooter make a reservation after the train departure from its originating point on these two corridors, the second passenger travelling with a scooter could store their scooter in the baggage car, unfolded, fully assembled and untouched by other passengers.

[58] Also of note is the fact that the accommodation measure proposed for the Montréal–Jonquière–Senneterre corridor, and for the Jasper–Prince Rupert corridor, is temporary. Each of the two scooters will be stored in a tie-down area on the Montréal–Jonquière–Senneterre corridor, subject to a 48-hour advance notice, during Phase 1 of VIA’s fleet renewal project, and the same will be provided on the Jasper–Prince Rupert corridor, during Phase 2 of the project. While VIA has not specified when each phase of this project will be completed, it indicates that the deployment of new cars will begin in 2020.

[59] In light of the above, the Agency finds that the accommodation measures that VIA proposes for the Jasper–Prince Rupert and the Montréal–Jonquière–Senneterre corridors are reasonable interim measure, pending the completion of VIA’s fleet renewal project.

[60] In addition to the above, the parties commented on the types of mobility aids that should be covered by VIA’s policy. The order in the Original Decision is clear in that regard:

Either revise the Policy to provide for the storage of two scooters in one tie-down area or the assurance that each train has at least two tie-down areas (…)

[61] Similarly,the parties commented on the dimensions of the scooters that should be accepted by VIA. There is no indication that the measurements proposed by VIA would not accommodate the majority of mobility aids, including the applicants’ mobility aids. Moreover, the size and weight of mobility aids to be transported on trains will be addressed through the Agency’s RMI. The Agency will, therefore, add no further requirements in this regard.

SHOULD COSTS BE AWARDED?

Positions of the parties

The applicants’ position

[62] The applicants request an award of costs in an amount deemed appropriate by an Agency taxing officer. To justify their request, they submit that their case is of public interest and addresses issues that are not covered by the current Rail Code. The applicants also plead that the protracted nature of the litigation supports their request for an award of costs.

[63] The applicants indicate that they came to an agreement with VIA for the period of the proceedings until June 16, 2017, but wish to maintain their right to claim costs past that date. The applicants argue that the fact that VIA entered into a partial settlement of costs demonstrates its tacit acknowledgment of the applicants’ right to claim interim costs.

[64] The applicants refer to Rule 400 (3) of the Federal Court Rules 1998, and list the following factors to consider in awarding costs:

  • the importance and complexity of the issues;
  • the amount of work;
  • whether the public interest in having the proceeding litigated justifies a particular award of costs;
  • any conduct of a party that tended to shorten or unnecessarily lengthen the duration of the proceedings; and,
  • whether any step in the proceedings was improper, vexatious or unnecessary.

[65] The applicants note that they were “successful on their complaint”, which will not only benefit themselves, but also other persons with disabilities. As such, they argue that the public interest in the complaint weighs in favour of not having them personally bear the financial costs of pursuing the complaint. They submit that they raised significant issues about the number of tie-down areas in VIA’s trains, which required significant work, both from their counsel and from them.

[66] The applicants state that they have had to repeatedly advocate to the Agency to ensure that the order in the Original Decision is properly followed. The applicants submit that VIA’s actions and omissions in the proceedings have caused them extraordinary costs, which would not have been incurred if VIA had acted in good faith and in a timely manner. Namely, the applicants submit that the following failures by VIA caused delays:

  • misinterpreting the Original Decision, resulting in the need for a reviewed policy in May 2017, and the need to clarify that it applies nationally on all trains;
  • inaccurately representing information, or alternatively presenting incomplete information with respect to the studies that it completed;
  • prolonging the proceedings by its actions and omissions.

[67] The applicants plead that the Agency indicated in Decision No. 178-R-2000 (Moffat v. Canadian National Railway Company), that its discretion to award costs is broad and driven by the substance rather than by the form of the claim of costs. The applicants add that the Agency retains jurisdiction to award costs after the close of pleadings, irrespective of whether parties have specifically requested costs in their application. The applicants submit that section 25.1 of the CTA sets no bar in terms of “seeking costs in any subsequent pleadings”.

[68] The applicants request that a cost order for the proceedings after June 2017 be fixed at $17,500.

VIA’s position

[69] VIA submits that, under the Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), SOR/2014-104 (Dispute Adjudication Rules), the Agency may decide matters relating to granting costs in any proceedings before it, but only when submitted as part of an application “within the meaning of section 18 of the Rules”. VIA contends that the applicants have not claimed costs in their application before the Agency. VIA also submits that there was no mention of costs in the Original Decision.

[70] VIA states that the Agency only awards costs in special and exceptional circumstances. VIA contends that the applicants have adduced no evidence to establish special or exceptional circumstances. VIA submits that it always acted in good faith and in an efficient manner in these proceedings.

[71] VIA submits that the elements referred to in the request for costs either occurred prior to June 16, 2017 and have been settled privately between the parties, occurred after the close of pleadings and may not be considered by the Agency, or have not been demonstrated to constitute circumstances for which costs would be awarded by the Agency.

Analysis and Determinations

[72] Section 25.1 of the CTA reads as follows:

  1. Subject to subsections (2) to (4), the Agency has all the powers that the Federal Court has to award costs in any proceedings before it.
  2. Costs may be fixed in any case at a sum certain or may be taxed.
  3. The Agency may direct by whom and to whom costs are to be paid and by whom they are to be taxed and allowed.
  4. The Agency may make rules specifying a scale under which costs are to be taxed.

[73] The Agency has broad discretion regarding the awarding or denial of costs and each application is decided on its own merits. Factors that the Agency may consider when deciding whether to award costs include the results of the adjudication, whether the case has important public interest dimensions, and whether either party behaved in a manner that unnecessarily lengthened the proceeding.

[74] In this case, the application was successful. The evidence established that the applicants are persons with disabilities, that they faced and obstacle, and that the obstacle could be removed without VIA experiencing undue hardship. In addition, the application had clear public interest dimensions, insofar as it addressed an issue of concern to all persons with disabilities who use scooters and wish to travel together on a VIA train.

[75] Finally, VIA’s actions over the course of the proceeding resulted in unnecessary delays, even after VIA and the applicants reached an agreement on an interim payment of costs on June 16, 2017. On several occasions, VIA either misinterpreted the Agency’s decisions, or failed to adequately respond to them:

- By LET-AT-R-34-2017 dated June 23, 2017, the Agency required VIA to confirm that its proposed policy would be implemented and applied to all of its trains operating across Canada. VIA responded that the policy would only apply to the Québec–Windsor corridor, alleging that this corridor only formed the object of the original application. However, in no way did the Original Decision limit the scope of the application to that corridor.

- In the Interim Decision dated November 1, 2017, the Agency determined that VIA had failed on different fronts in complying with the Original Decision:

    • While VIA indicated that it was waiting for the Agency’s approval before providing the required clear guidance to its personnel, this requirement was to be completed by May 15, 2017, irrespective of the Agency’s approval of the revised policy. Further, VIA indicated that the clear guidance was only to be provided in the Québec–Windsor corridor when in fact, the Agency’s order was not limited to this section of VIA’s network.
    • VIA did not provide the required summary of any related consultations.
    • VIA was given until May 15, 2017 to revise its policy in accordance with the Agency’s order or file arguments on undue hardship, but did neither.
    • In response to the Interim Decision, VIA still did not confirm whether consultations were held.

[76] None of these actions negate the fact that VIA ultimately proposed reasonable accommodation measures and made accessibility considerations a key element to its fleet renewal strategy. However, when considered together with the other factors above, they lead the Agency to find that an award costs to the applicants with respect to the period from June 16, 2017 is appropriate.

ORDER

[77] The Agency ordersthat VIA proceed with the implementation of the accommodation measures proposed in its policy, as set out above, and provide the associated training across its network by January 7, 2019.

[78] As it relates to the Jasper–Prince Rupert and the Montréal–Jonquière–Senneterre corridors, the Agency finds that the proposed interim measure is adequate, provided that VIA makes its best efforts to respond to accommodation requests within 48 hours. In addition, the Agency orders VIA to complete the upgrade of its train cars on these two corridors to provide for two accessible spaces with anchoring devices at the latest on December 31, 2020.

[79] In addition, VIA is to report to the Chief Compliance Officer every 6 months from the date of this Decision, and until December 31, 2020, to provide:

- the number of accommodation requests from two persons with disabilities travelling each with a scooter on the Jasper–Prince Rupert and the Montréal–Jonquière–Senneterre corridors; and,

- how much advance notice was required to provide the requested accommodation measures.

[80] This reporting requirement will apply until VIA’s new fleet deployment is complete, unless new accessible transportation regulations create an earlier related obligation that would take precedence.

[81] In respect of costs, the parties are encouraged to reach an agreement through direct negotiation. If the applicants inform the Agency that an agreement has not been reached by November 23, 2018, the Agency will appoint a taxing officer to fix the quantum.

Member(s)

Scott Streiner
William G. McMurray
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