Decision No. 641-AT-R-1998
Follow-up - Decision No. 280-AT-R-2000
December 29, 1998
APPLICATION by Yvonne Gaudet, on behalf of Marcella Arsenault, pursuant to subsections 172(1) and (3) of the Canada Transportation Act, S.C., 1996, c. 10, regarding the accommodations and level of service provided by VIA Rail Canada Inc. to Ms. Arsenault during her return trip from Moncton, New Brunswick, to Oakville, Ontario.
File No. U3570/98-23
Yvonne Gaudet has filed an application with the Canadian Transportation Agency (hereinafter the Agency) on behalf of Marcella Arsenault with respect to the matter set out in the title. The application was received on August 27, 1998.
The issue to be addressed is whether the on-board accommodations and level of service provided by VIA Rail Canada Inc. (hereinafter VIA) to Ms. Arsenault constituted undue obstacles to her mobility, and if so, what corrective measures should be taken.
Ms. Gaudet booked a return trip for Ms. Arsenault and an attendant to travel from Moncton to Oakville departing on March 21, 1998 and returning on April 2, 1998. Ms. Arsenault has muscular dystrophy and uses a wheelchair. Before making the reservations, Ms. Gaudet asked for and received confirmation that the trains were wheelchair-accessible. The reservations made for the passengers' return trip were as follows:
- accessible accommodations in a sleeping car between Moncton and Montréal;
- seats in a coach car between Montréal and Toronto; and
- seats in a coach car between Toronto and Oakville.
On the Moncton to Montréal segment, Ms. Arsenault could not access the washroom located inside her room as, contrary to her expectations, the on-board wheelchair would not fit in it.
Upon boarding the coach car on the Montréal to Toronto segment, Ms. Arsenault was informed that the train was overbooked. As a result, and despite the reservations made for her to occupy a seat, she had to remain in her wheelchair in the tie-down position during the trip to Toronto. Her request to be transferred to a seat was denied even though there was a seat that remained unoccupied next to her attendant. Ms. Arsenault was also inconvenienced by the fact that the public wheelchair-accessible washroom in the coach car on which she travelled was out of order.
On the Toronto to Oakville segment, the VIA employee complained about having to tie down Ms. Arsenault's wheelchair and left the meal tray in an upright position against the wall.
When boarding the sleeping car for the return Montréal to Moncton segment, Ms. Arsenault requested to remain in her coach car seat in order to have use of the wheelchair-accessible washroom. However, Ms. Arsenault was provided with accommodation in the sleeping car which, according to the VIA employee, was close to the public wheelchair-accessible washroom. It was discovered during the journey that the facility located nearby was, in fact, a shower stall.
Accessible sleeping cars currently used by VIA offer the following characteristics and features for persons in a wheelchair:
- rooms are wheelchair-accessible using the narrow on-board wheelchair (Washington wheelchair); the private washroom within these rooms cannot, however, be accessed with the on-board wheelchair;
- there is a public washroom at one end of all accessible sleeping cars; these facilities are wheelchair-accessible using the on-board wheelchair; and
- an on-board wheelchair is stored in all accessible sleeping cars.
All accessible coach cars currently used by VIA are equipped with a wheelchair tie-down and an on-board wheelchair. There is a public washroom on board each coach car and it is accessible using the on-board wheelchair.
POSITIONS OF THE PARTIES
Accessibility of Sleeping Car Accommodations
Ms. Gaudet emphasizes that, as she uses a wheelchair herself, at the time of booking, she repeatedly asked if the trains were fully wheelchair-accessible in order to ensure her friend's well-being and comfort. She was assured by the reservation agent that they were totally accessible. Given the information provided by the reservation agent and the difficulties encountered by Ms. Arsenault, Ms. Gaudet doubts that VIA understands what accessibility means.
She asks that the carrier ensure that its staff be made aware of the importance of giving out precise information to customers with disabilities at the time of booking. Had she been given the correct information, Ms. Gaudet states that she certainly would have chosen another method of travel for her friend.
Ms. Gaudet offers the following suggestions to assist VIA in ensuring that proper information is provided to its customers about the wheelchair accessibility features of its trains:
- VIA should have designated and properly trained representatives to take all incoming calls for "special need" reservations;
- at the time of booking, VIA should offer to provide its customers with a pamphlet (ideally with pictures) which would fully describe and outline the accessibility features of its trains; and
- should a customer decide, after reading VIA's "accessibility/special needs" pamphlet, that he/she would not be able to cope with the inconveniences, VIA should offer to this customer the option of cancelling their reservations.
VIA submits that the reservation agent did provide information to Ms. Gaudet to the effect that the trains were wheelchair-accessible, but not 100 percent accessible. VIA explains that its trains are wheelchair-accessible, but, due to the size of the cars, access to some of the areas are limited and require the use of the narrow on-board wheelchair (Washington wheelchair), which is provided by the carrier.
On the issue of the wheelchair accessibility of the washroom facilities in its sleeping cars, VIA advises that customers are informed at the time of booking that the rooms are wheelchair-accessible using the carrier's narrow on-board wheelchair but that the private washrooms located inside the rooms are not. There is, however, a public washroom at one end of all sleeping cars and these washroom facilities are accessible using the on-board wheelchair. VIA further clarifies that it is the VIA attendant's role to assist the passenger to move to and from the washroom.
As a result of Ms. Gaudet's complaint, VIA submits that it has modified the information recorded in its computer reservation system. When making reservations, customers with special needs are informed that:
- they must be able to transfer to the narrow on-board wheelchair to access their room;
- the narrow on-board wheelchair cannot go in the private washrooms, but this mobility aid can be used to access the public washroom located at one end of each sleeping car;
- room service is available in sleeping cars at no additional cost; and
- periodic inquiries can be made by the carrier's staff about the person's needs during travel.
Regarding the accommodations provided to Ms. Arsenault on the return Montréal to Moncton segment, VIA advises that its records do not reflect that a change of accommodations was requested by Ms. Arsenault or her attendant and reiterates that there is a public wheelchair-accessible washroom at one end of all of its sleeping cars.
Seating Accommodations on the Montréal to Toronto Segment
Whether the train was overbooked or not, Ms. Gaudet stresses the fact that she had personally made arrangements for Ms. Arsenault to occupy a coach car seat on the Montréal to Toronto segment and that she had paid for such seating accommodations. Accordingly, Ms. Gaudet is of the view that there was no excuse for not letting Ms. Arsenault sit in the coach car seat that had been reserved for her, especially since there were empty seats during the entire trip.
VIA states that its records do reflect that booking was made for Ms. Arsenault to occupy a coach car seat in the economy class. However, at the time of travel, the train was overbooked. In situations where a shortage of seats occurs, VIA advises that train crews attempt to accommodate all passengers. The option to choose between remaining in a mobility aid or transferring to a seat should be offered by the train crew at pre-boarding or once the passenger boards the train. It is VIA's policy that an acceptable arrangement be reached and that preferences be respected. When this is not possible, the concerns of the passenger and escort are normally noted. VIA asserts that no objection was recorded in the case at hand, which leaves it to believe that its policy was respected.
With respect to the seat that remained unoccupied, VIA explains that this seat could not be assigned because the reservation system indicated that it was occupied. VIA points out, however, that the passenger and her escort's accommodations were upgraded to first class in a VIA-1 coach car, which provides a larger and more comfortable seat for the escort, full course meals and greater access to the VIA employees.
In answer to the statement made by VIA to the effect that the seating accommodations provided to Ms. Arsenault and her attendant were upgraded, Ms. Gaudet submits that no full course meal of any kind was served and that the only food offered to Ms. Arsenault and her attendant were snacks from a canteen cart which they had to purchase.
On-board services and assistance
Considering that the wheelchair-accessible washroom in the coach car on which Ms. Arsenault travelled on the Montréal to Toronto segment was out of order and that the train service between Montréal and Toronto is five hours long, Ms. Gaudet expresses the view that the staff of VIA showed extreme disrespect and insensitivity towards Ms. Arsenault in providing her with seating accommodations in that particular rail car. No one should be denied basic washroom facilities.
Ms. Gaudet is also concerned about the rudeness and negligence of the VIA employee on the Toronto to Oakville segment, especially as to what would have happened if the meal tray had fallen down. Ms. Gaudet submits that this should not be tolerated in any circumstances.
On the issue of the out-of-order washroom, VIA states that, according to its records, the first indication that there was a problem with the said washroom was reported after the departure of the train from Cornwall. Ms. Gaudet responded to this statement by advising that the out-of-order sign on the washroom door in question was noticed by Ms. Arsenault and her attendant while they boarded the train in Montréal. Nonetheless, VIA indicates that, upon request, a VIA employee would have assisted the passenger to move to and from the wheelchair-accessible washroom of another coach car with the use of an on-board wheelchair.
With respect to the uncooperative VIA employee, VIA submits, regrettably, that the employee should have been more sensitive to the needs and comfort of Ms. Arsenault. While acknowledging that the meal tray should have been put down, VIA explains that the fact that it was left up against the wall did not create a hazardous situation as there is a safety clip on the meal tray to prevent it from falling down. VIA advises that it will stress to the employee who has been identified as uncooperative the importance and the urgency of being sensitive to passengers with special needs.
Ms. Gaudet states that the misleading information provided at the time of booking, the lack of accessibility, which discriminates against wheelchair users, and the on-board services are unacceptable. She is requesting the reimbursement of Ms. Arsenault's return-trip ticket and the payment of an adequate compensation to Ms. Arsenault for the treatment she received from VIA.
VIA has agreed to reimburse Ms. Gaudet for the cost of the entire return-trip ticket and to reimburse the cost of any snacks purchased by Ms. Arsenault and her escort.
AGENCY ANALYSIS AND FINDINGS
In making the following findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.
There are four accessibility-related elements in Ms. Gaudet's application that the Agency considers relevant to its review, which are as follows:
- the accessibility of VIA's sleeping cars for persons in wheelchairs;
- the seating accommodations provided to Ms. Arsenault;
- the level of on-board service and assistance provided to Ms. Arsenault; and
- the communication of information when reservations are made.
1) Accessibility of VIA's Sleeping Cars for Persons in a Wheelchair
Based on the information on file, VIA's sleeping cars are wheelchair-accessible to persons who can be transferred to a narrow on-board wheelchair provided by the carrier. In this regard, it is noted that the rooms may not be accessible to persons using their personal wheelchairs, but they are accessible using the carrier's on-board wheelchair. It is also noted that while the private washrooms located within each individual room are not accessible using the carrier's on-board wheelchair, there are public washrooms at one end of all sleeping cars and these public washrooms are accessible using the narrow on-board wheelchair.
While there is no doubt that the inability of Ms. Arsenault to access the private washroom located within her room constituted an obstacle to her mobility, the Agency does not find this obstacle to be undue. This determination is made in view of the financial and other implications to the carrier of making the structural changes that would be required to make its sleeping cars fully accessible and the reasonableness of the alternatives available to passengers with disabilities.
Moreover, the Agency notes that VIA has committed to improve the accessibility of its passenger rail cars in compliance with the Agency's Code of Practice - Passenger Rail Car Accessibility and Terms and Conditions of Carriage by Rail of Persons with Disabilities (hereinafter the Code of Practice), which was issued in February 1998. This Code of Practice, which was developed after extensive consultations with the community of persons with disabilities and the rail carrier industry, presents minimum standards that rail carriers are expected to meet by established time frames. It deals with services that should be provided so that passengers with disabilities may expect to travel by rail with a reliable and consistent level of service. It also deals with features to make all passenger rail cars, including coach cars and sleeping cars, more accessible to persons with disabilities.
On the issue of wheelchair accessibility of sleeping cars, the Agency's Code of Practice establishes that, eventually, every passenger train that provides sleeping car facilities should have at least one sleeping car that has at least one room accessible to persons with disabilities using a personal wheelchair, and that this room should include, among other accessibility features, a washroom accessible to persons in a personal wheelchair. Until this goal is reached, any newly manufactured sleeping car ordered, purchased or leased by a rail carrier to be used on or after April 1, 2001, or any existing sleeping car undergoing a major refurbishment to be used on or after that same date, should satisfy the established accessibility criteria. In the case of existing sleeping cars, it is recognized that structural limitations of these cars could prevent some of the space requirements for accommodating a person in a personal wheelchair from being satisfied. In these instances, carriers are urged to strive to make the sleeping cars at least accessible to a person in an on-board wheelchair.
The Agency is, however, concerned by the controversy between the parties about the accessibility of VIA's sleeping cars. On the one hand, Ms. Gaudet and Arsenault expected the private washroom facilities in VIA's sleeping cars to be able to accommodate a person in the narrow on-board wheelchair and, on the other hand, VIA advises that passengers are informed at the time of booking that while the rooms are accessible using the narrow on-board wheelchair provided by the carrier, the private washrooms located within these rooms are not. Accordingly, the Agency is of the opinion that there appears to have been a miscommunication or misinterpretation of the information provided by the reservation agent to Ms. Gaudet at the time of booking. The Agency will deal with the issue of the communication of information by reservation agents at the time of booking in item 4) set out below.
2) Seating Accommodations Provided to Ms. Arsenault
With respect to the seating accommodations provided to Ms. Arsenault on the Montréal to Toronto segment, it is noted that VIA has confirmed that the reservations were made for Ms. Arsenault to be transferred from her wheelchair to a car seat. It is also noted that in situations where a train is overbooked, VIA has advised that train crews attempt to accommodate all passengers and that, in accordance with its policy, acceptable seating arrangements must be reached and preferences must be respected. In light of the fact that some seats remained unoccupied for the duration of the trip between Montréal and Toronto, which was confirmed by VIA, and considering the preference expressed by Ms. Arsenault to be transferred to a car seat, the Agency is of the view that the carrier's personnel did not make all reasonable efforts to accommodate Ms. Arsenault. VIA employees failed to apply VIA's own policy to respect passenger preferences. The Agency finds that the failure to honour the seat assignment constituted an obstacle to the mobility of Ms. Arsenault. The Agency finds this obstacle undue in that it could have been easily avoided had the carrier's personnel involved demonstrated sensitivity towards the passenger and discussed options that would have better met her needs.
3) Level of On-board Service and Assistance Provided to Ms. Arsenault
On the issue of the out-of-order accessible washroom on the Montréal to Toronto segment, the Agency notes VIA's assertion that, upon request, a VIA employee would have assisted the passenger to move to and from the accessible washroom on board another rail car. While it is not clear whether Ms. Arsenault or her attendant, on her behalf, actually asked to use the washroom, the Agency finds no evidence that the carrier's personnel offered any kind of assistance to the passenger. The Agency is of the opinion that the carrier's personnel should have demonstrated sensitivity by asking the passenger whether she needed any assistance. At the very least, VIA's personnel should have advised her upon boarding that, should she so desire, assistance would be provided to move her to and from the wheelchair-accessible washroom in another car. This dialogue would have likely resulted in Ms. Arsenault and her attendant having a better understanding of the available options.
The Agency is therefore of the opinion that, notwithstanding whether Ms. Arsenault or her attendant, on her behalf, asked to use the washroom, this lack of communication/assistance was an obstacle to her mobility. The Agency finds the obstacle to be undue in that it could have been easily avoided had the carrier's personnel inquired periodically about her needs. The Agency notes that the carrier recognizes the importance of maintaining open communication with its passengers with disabilities, as evidenced by the proposed modification to the information contained in its computer system reflecting the conduct of periodic inquiries by the carrier's staff about the person's needs during travel.
With respect to the uncooperative employee on the Toronto to Oakville segment, the Agency finds that the situation caused by the lack of sensitivity, awareness and concern on the part of that employee constituted an undue obstacle to the mobility of Ms. Arsenault. The Agency finds that the unfortunate incidents experienced by Ms. Arsenault could have been avoided, had the employee involved been more sensitive to the needs of the passenger and had he/she performed his/her duties in a professional manner. The Agency notes that VIA has advised that it will meet with this employee to stress the importance and the urgency of being sensitive to passengers with special needs. Accordingly, the Agency requests that VIA submit a confirmation attesting that the specific incidents described in Ms. Gaudet's complaint have been raised with the employee involved. Furthermore, as the Agency is of the opinion that adequate assistance to passengers with disabilities is an integral part of customer services, the Agency requests that VIA remind all personnel of the importance of tending to the needs of these passengers. Such a reminder could be conveyed in the form of a bulletin.
4) Communication of Information When Arrangements/Reservations are Made
Despite VIA's assertion that passengers are informed at the time of booking that its trains are wheelchair-accessible, but not 100 percent accessible, the Agency accepts the statement made by Ms. Gaudet to the effect that, using a wheelchair herself, she repeatedly asked for confirmation that the trains were fully wheelchair-accessible and that the reservation agent had assured her that they were. Accordingly, there appears to have been a miscommunication of information by the reservation agent to Ms. Gaudet.
In light of the attempts made by Ms. Gaudet to explain the needs of Ms. Arsenault to the reservation agent, the Agency is of the view that the reservation agent had ample opportunity to discuss and identify the particular requirements of Ms. Arsenault and to advise Ms. Gaudet of the services that Ms. Arsenault was entitled to expect from VIA, both in terms of the accessibility of on-board facilities to persons in wheelchairs and services provided by the carrier's train crew. The Agency finds that the level of information provided to Ms. Gaudet at the time of reservations and the lack of communication by the reservation agent of Ms. Arsenault's needs to the VIA train crews constituted undue obstacles to the mobility of Ms. Arsenault in that the uncertainty and stress experienced by the passenger could have been easily avoided had the carrier's personnel properly provided appropriate information and periodically inquired about the passenger's needs during travel.
It is noted that, as a result of the complaint, VIA has modified the information contained in its computer reservation system pertaining to the accessibility of the rooms and washroom facilities on board its sleeping cars for persons in wheelchairs. The Agency also notes that customers will be advised that periodic inquiries will be made by a VIA employee about the person's needs during travel. The Agency has considered the corrective measures undertaken by the carrier and is satisfied that customers should be provided with adequate information which will allow them to make an educated choice as to the accommodations that will best meet their needs.
Based on the above findings, the Agency determines that the current level of accessibility of VIA's sleeping cars for mobility impaired passengers did not constitute an undue obstacle to the mobility of Ms. Arsenault in light of the reasonableness of the alternatives available.
With respect to the level of information provided at the time of booking by the reservation agent regarding the accessibility of VIA's sleeping cars for persons in wheelchairs, the Agency determines that, although it did constitute an undue obstacle to the mobility of Ms. Arsenault, the corrective measures undertaken by the carrier in the form of the amendments to the information contained in its reservation system will assist in preventing the recurrence of situations similar to the ones experienced by Ms. Arsenault. Accordingly, the Agency does not contemplate any action with respect to this matter at this time.
The Agency determines that the failure by the carrier to honour the seating assignment for Ms. Arsenault on the Montréal to Toronto segment, the lack of discussion/assistance on the part of the train crew on the Montréal to Toronto segment in relation to the out-of-order wheelchair-accessible washroom, and the lack of sensitivity and professionalism demonstrated by the VIA employee on the Toronto to Oakville segment constituted undue obstacles to the mobility of Ms. Arsenault. To prevent a recurrence of these situations, VIA is requested to:
- issue a bulletin reminding its personnel about seat assignment for passengers with disabilities and the importance of open communication with these passengers to determine their needs, and to provide the Agency with a copy of this bulletin within thirty (30) days from the date of this Decision;
- issue a bulletin to remind its personnel of the importance of inquiring periodically about the needs of passengers with disabilities while they travel and to attend to those needs, and to provide the Agency with a copy of this bulletin within thirty (30) days from the date of this Decision; and
- submit to the Agency, within thirty (30) days from the date of this Decision, a written confirmation that the specific incidents experienced by Ms. Arsenault on the Toronto to Oakville segment have been raised with the employee involved.
Following its review of the requested information, the Agency will determine whether further action is required.