Decision No. 727-AT-MV-1999
December 24, 1999
APPLICATION by Bob Brown pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, concerning the reservation procedures of the Ottawa-Carleton Regional Transit Commission as they apply to its Para Transpo service from Ottawa, Ontario to Hull, Quebec.
File No. U 3570/99-14
On March 3, 1999, Bob Brown filed an application with the Canadian Transportation Agency (hereinafter the Agency) with respect to the matter set out in the title.
By Decision No. LET-AT-MV-111-1999 dated April 14, 1999, the Agency granted the Ottawa-Carleton Regional Transit Commission (hereinafter OC Transpo) an extension of time until April 26, 1999 to file an answer to the complaint filed by Mr. Brown.
OC Transpo filed its answer on April 26, 1999 and Mr. Brown provided his reply on May 3, 1999. Additional comments were filed by both parties.
Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties agreed to an extension of the statutory deadline until December 29, 1999.
The issue to be addressed is whether the reservation procedures used by OC Transpo for its Para Transpo service from Ottawa to Hull constituted an undue obstacle to Mr. Brown's mobility and, if so, what corrective measures should be taken.
By letter dated July 28, 1999, as amended by facsimile dated August 31, 1999, Mr. Brown filed a notice of motion requesting an Agency ruling regarding the application of the Canadian Charter of Rights and Freedoms (hereinafter the Charter) and the Canadian Human Rights Act (hereinafter the CHRA) to his complaint before the Agency. The Agency has also considered submissions contained in a letter of June 18, 1999 from Mr. Brown as relevant to this issue. OC Transpo did not make submissions on this issue.
The Agency's statutory mandate regarding accessible transportation is found in Part V of the CTA. Upon receipt of a complaint with respect to the federal transportation network, the Agency conducts an investigation and determines whether there is an undue obstacle to the mobility of persons with disabilities. This mandate does not include a consideration of the issue of discrimination as found in the CHRA, which legislation provides broad jurisdiction to the Canadian Human Rights Commission (hereinafter the CHRC) relating to discriminatory practices in the provision of goods, services (including transportation) and facilities and accommodation to persons with disabilities. Parliament recognized the overlap in jurisdiction between these two bodies in section 171 of the CTA which requires that the Agency and the CHRC "coordinate their activities in relation to the transportation of persons with disabilities in order to foster complementary policies and practices" and neither body adopts the legislative mandate of the other in the exercise of its statutory mandate.
Section 5 of the CTA sets out the national transportation policy which refers to the consideration to be given by the Agency to "legal and constitutional requirements". However, the Agency is of the opinion that this section establishes the overall objectives of the legislative scheme and does not establish substantive jurisdiction for the Agency.
While subsection 52(1) of the Constitution Act, 1982 provides that the "Constitution of Canada is the supreme law of Canada", discrimination in the context of the Charter is limited to that caused by the application or operation of law and does not include that caused by private action. The application of the Charter to legislation and regulations, and to decisions and actions of government bodies is clear. The status of bodies which may otherwise be considered private entities but which are subject to governmental control such that they may be viewed as exercising administrative or executive governmental powers is not as clear. In a similar vein, although OC Transpo is a corporate entity, it is subject to some degree of control by the municipal government. The Agency is of the view that the question of whether that governmental control is sufficient to bring OC Transpo under the application of the Charter is a matter that would be more properly dealt with in another forum given the broad implications of such a decision on OC Transpo.
Mr. Brown uses an electric wheelchair. On March 3, 1999, Mr. Brown called Para Transpo to book a trip from Ottawa, Ontario to Hull, Quebec for the following day. His name was placed on a standby list because it was a casual trip rather than a regularly scheduled trip. Later in the day, OC Transpo determined that his request could be accommodated and Mr. Brown was advised accordingly.
OC Transpo operates a conventional bus transit system and a parallel service for persons with disabilities, called "Para Transpo", in the Urban Transit Area of Ottawa-Carleton in the province of Ontario (hereinafter the UTA). Para Transpo is a door-to-door transportation service for persons who, because of disabilities, cannot use its conventional transit system.
In 1982, OC Transpo's conventional bus services expanded to Hull in order to meet the needs of those UTA residents whose work locations with the federal government were being transferred from Ottawa to Hull. Also in 1982, in an attempt to parallel the conventional bus services to Hull, OC Transpo adopted a policy that would provide Para Transpo clients with a direct, no transfer service to all Outaouais destinations within 3 kilometres of the Place du Portage office complex. There was a concern that some work locations in Hull might be more than 3 kilometres from Place du Portage and, as a result, the Para Transpo service was later extended to cover the entire city of Hull for work trips only.
The Para Transpo policy was revised in 1986 to also include post-secondary education trips to Hull and was further revised in 1987 to provide direct, no transfer service for UTA residents to any location in Hull. To ensure that the transportation provided by Para Transpo within the UTA, its original service area, would not be negatively affected by trips to Hull that go beyond the geographic area served by OC Transpo's conventional transit system, OC Transpo approved the following directive:
Service to Hull for other than regularly scheduled work trips and post secondary education trips, be provided only when vehicles and drivers are available and when the provision of transportation to Hull does not negatively affect the quality of Para Transpo service provided within the UTA of Ottawa-Carleton.
In order to meet this directive, Para Transpo adopted the following reservation procedure: all regularly scheduled trips (work and post-secondary trips) to Hull are automatically provided. Casual trip requests for service within the UTA and to Hull are accepted one day in advance and casual trip requests to Hull are placed on a standby list. In the late afternoon and evening prior to the service day, Para Transpo personnel attempt to accommodate all requests for service within the resources that are available, including accommodating casual trip requests to Hull without affecting the quality of service provided within the UTA.
In 1998, Para Transpo provided 735,000 one-way passenger trips, 12,115 of which were trips to or from Hull. Most of the trips to Hull were regular scheduled trips but some were casual trips requested one day in advance. A total of 40,000 requests for one-way trips could not be accommodated and OC Transpo estimates that 400 of these would be trip requests to or from Hull.
POSITIONS OF THE PARTIES
Mr. Brown is of the opinion that the requirements to book travel 24 hours in advance and to be placed on a waiting list is not fair and equal treatment for persons with disabilities as persons without disabilities are not subject to these requirements. He believes that it may be illegal to ask the purpose and nature of the trip and to prioritize access to the transportation system accordingly. Mr. Brown advises that the conventional OC Transpo system does not have a trip categorization requirement limiting trips to those for work or education purposes. Mr. Brown asks that the Agency find this an undue obstacle and order the removal of this policy as, in his opinion, it discriminates against persons with disabilities. Mr. Brown also submits that passengers travelling from Ottawa to Hull on the conventional system are able to transfer to the Quebec system to continue their journey and this is not an option for persons with disabilities using the Para Transpo system.
OC Transpo explains that, pursuant to its revised policy of 1987, the only time that the purpose of the trip is considered is when a request is made to set up regular bookings to Hull for work or education purposes. Otherwise, the purpose of the trip is not taken into consideration. OC Transpo also advises that the demand from Para Transpo customers for casual trips to Hull has been low and that more often than not these requests have been accommodated.
Although Mr. Brown acknowledges that OC Transpo is providing casual trips to Hull, he considers the directive set out above to be an undue obstacle and a discriminatory practice and notes that it is still on the public record.
OC Transpo submits that, at the time of the incident, Para Transpo did not have access to a fully automated scheduling system and could not determine whether specific trip requests to Hull would affect the quality of services within the UTA until the majority of requests for transportation within the UTA had been received. OC Transpo advises that in May 1999, it implemented a fully automated scheduling system which allows all customer trip requests, including Hull trips, to be automatically scheduled as soon as they are received. OC Transpo explains that, with the new reservation system, trip requests to Hull are now processed in the same manner as all other service requests and are no longer placed on a standby list.
In response to the concern raised by Mr. Brown on the existing policy regarding the provision of transportation to Hull, OC Transpo submits that, following the experience gained with the new automated system, it will report to its Transit Services Committee on how the system has affected the services provided by Para Transpo, including the services to Hull, and how it may improve other areas of the service. According to OC Transpo, this report will likely be submitted before the end of 1999.
With respect to the new automated reservation and scheduling system, Mr. Brown questions the anticipated degree of success suggested by OC Transpo. Mr. Brown submits that this software program has been tried in a number of large urban areas in the United States and was subsequently rejected. Mr. Brown advises that on days when the system was used in testing, much longer waiting periods were experienced.
Mr. Brown submits that OC Transpo never claimed publicly or during the pleadings that this new system would eliminate the trip rejections experienced. Mr. Brown is of the opinion that the only way for OC Transpo to ensure with any degree of certainty that a trip to Hull will not affect a trip in the UTA is to put the request on a waiting list.
ANALYSIS AND FINDINGS
In making its findings, the Agency has considered all of the evidence submitted by the parties during pleadings.
Mr. Brown's complaint is based on his view that, as a general principle, being required to give 24 hours' notice of travel plans, being asked for the reason of the trip and being placed on a standby list is an undue obstacle to his mobility as users of the conventional bus service who want to travel to Hull are not subject to such requirements.
At the outset, the Agency notes that para transit services for persons with disabilities are very different from conventional bus transit services. The level of service provided to users of the conventional transit system is substantially different from the door to door transportation service para transit provides to persons with disabilities. The Agency recognizes that, because of the nature of the service provided by Para Transpo, the administration, scheduling and coordination of all reservations requires greater planning on a daily basis. As a provider of a public transportation service, it is also the responsibility of OC Transpo to ensure an appropriate level of service is provided to all travellers with the resources that are available. The Agency accepts the position taken by OC Transpo that, in the absence of an appropriate automated reservation and scheduling system which would allow all customer trip requests to be automatically scheduled, the requirement to book 24 hours in advance for casual trips to Hull and within the UTA was necessary.
The Agency also notes from the evidence on file that, as the demand for Para Transpo services is greater than the supply, OC Transpo made the decision to put in place specific measures to ensure that priority be given to regularly scheduled trips for work and education purposes and that the acceptance of casual trips requests to Hull would not be to the detriment of services it provides within the UTA.
The Agency notes that although casual trip requests for service within the UTA and to Hull were accepted one day in advance, casual trips to Hull were not given the same priority as they were placed on a standby list. In addition, while recognizing that OC Transpo's existing policy for casual trips to Hull is to provide transportation only when vehicles and drivers are available and when it does not affect the quality of service provided within the UTA, the Agency notes that implementation of this policy was never required as demand for casual trips to Hull has been low. The Agency finds that there is no evidence on this file to support a determination that OC Transpo's existing policy created an undue obstacle to the mobility of Mr. Brown. The Agency notes, however, that OC Transpo is currently using a new automated reservation and scheduling system. Following the experience gained with the new automated system, OC Transpo will report to its Transit Services Committee before the end of 1999 on how this new system has affected the services provided by Para Transpo, including trip requests to Hull.
With respect to the concern raised by Mr. Brown regarding having to provide the reason for the trip, the Agency is satisfied that trip purpose was never taken into consideration for the prioritization of casual trips to Hull.
While the Agency recognizes that the inconveniences experienced by Mr. Brown as a result of the reservation procedure adopted by OC Transpo for its Para Transpo service constituted an obstacle to his mobility, the Agency does not find that this obstacle was undue as the very nature of para transit door to door services requires a reservation process and a system of prioritization of trips for regular and casual trips. In this respect, the Agency notes, however, that with the implementation of the new automated reservation and scheduling system on May 31, 1999, services to persons with disabilities booking casual trips should improve.
Based on the above findings, the Agency requires OC Transpo to provide to the Agency, on or before January 31, 2000, a copy of the report submitted to its Transit Services Committee on how the new automated reservation and scheduling system has affected the services provided by Para Transpo and how it may improve other areas of the service.