Decision No. 85-AT-MV-2009
March 11, 2009
APPLICATION by OC Transpo pursuant to section 32 of the Canada Transportation Act, S.C., 1996, c. 10, as amended, for a review of Decision No. 610-AT-MV-2007 dated November 30, 2007.
File No. U3570/06-41
 OC Transpo requests that the Canadian Transportation Agency (Agency), pursuant to section 32 of the Canada Transportation Act (CTA), review Decision No. 610-AT-MV-2007 (Final Decision). More specifically, OC Transpo requests that the Agency vary the Final Decision by extending the time line for compliance until December 31, 2009.
 Has there been a change in the facts or circumstances pertaining to the Final Decision since it was issued that would justify/warrant a review of the Final Decision pursuant to section 32 of CTA, and if so, is such change sufficient for the Agency to rescind or vary the Final Decision?
 In response to an application filed by Terrance J. Green, the Agency found in Decision No. 200-AT-MV-2007 (Show-cause Decision) that OC Transpo operators did not comply with OC Transpo's policies and procedures which require the calling out of major and requested stops to ensure that its services are accessible to visually-impaired and blind passengers. The Agency found that this constituted an undue obstacle to Mr. Green's mobility and that of other persons with similar disability-related needs.
 The Agency provided OC Transpo with the opportunity to submit reasons why OC Transpo should not be required to implement, within ninety (90) days of a final decision of the Agency, the corrective measures set out in the Show-cause Decision to ensure the consistent application of OC Transpo's policies and procedures to ensure that announcements are made and clearly heard.
 In response to the Show-cause Decision, OC Transpo described its plan designed to ensure compliance with its policies and procedures regarding the calling out of stops. On November 30, 2007, the Agency issued the Final Decision. In the Final Decision, the Agency reviewed the comprehensive submission by OC Transpo and found, "on the basis that OC Transpo will implement within a reasonable timeframe the plan developed for the monitoring and the compliance of calling out major and requested stops, the Agency is satisfied that OC Transpo has addressed the corrective measures in [the Show-cause Decision] to ensure the consistent application of its policy."
 OC Transpo states that it implemented measures that have resulted in an increase in the rate of calling out of major stops from a baseline of 14 percent up to 79 percent by September 2008. It further states that it is now working diligently to ensure that an automated stop announcement system will be installed on its buses and that with the installation of the system, compliance with its policies and procedures concerning the calling out of major and requested stops will come as close to 100 percent as possible.
 While OC Transpo states that it has formally commenced the process to purchase such a system, it refers to reporting and funding parameters and required approvals from the City of Ottawa through the various stages of the acquisition. OC Transpo submits that this process will likely mean that it will not be in a position to begin installing the system until the third quarter of 2009. Therefore, OC Transpo requests a variance of the Final Decision by extending the time for compliance with the Final Decision until December 31, 2009 to provide the time needed to complete the process to purchase and install an automated stop announcement system.
 Mr. Green argues that the delay to extend the time line for compliance with the Final Decision is being sought by OC Transpo solely on the grounds to provide more time to purchase and install an automated stop announcement system. Mr. Green further argues that the purchase and installation of an automated stop announcement system was not ordered by the Agency in the Show-cause Decision or in the Final Decision. Mr. Green also states that nearly two years have elapsed since the Agency's Show-cause Decision and that OC Transpo's failure to comply with the calling out of major and requested stops is both unreasonable and unacceptable for passengers with disabilities.
 In its submission to the Agency following the Show-cause Decision, OC Transpo advised the Agency that it was in the process of undertaking a communications/training program for operations staff, introducing a new operator handbook and implementing a monitoring/compliance program in response to the Show-cause Decision. In the Final Decision, the Agency concluded that no further action was necessary on the basis that those activities would be implemented within a "reasonable timeframe". It appears that OC Transpo has misconstrued this "reasonable timeframe" as also providing time to deploy an automated stop announcement system.
 The Agency did note in the Show-cause Decision that technology would assist in conveying information (i.e., the announcement of stops) to transit users. However, the Agency limited its comments on an automated stop announcement system to imposing certain requirements "once installed" on OC Transpo buses. This was based on OC Transpo's submission that it was planning to install a system. The requirements imposed in the Show-cause Decision by the Agency with respect to a system "once installed" did not constitute an order by the Agency that a system be installed by OC Transpo.
 As noted above, the plan submitted by OC Transpo to the Agency pursuant to the Show-cause Decision called for changes to its Operator Manual to reflect OC Transpo's longstanding (but unenforced) policy on calling out stops. It also included clear criteria with respect to the requirement that operators call out major and requested stops. It called for a training program, the use of progressive discipline and implementation of a monitoring system to ensure compliance. As OC Transpo claimed all these efforts were either completed or well underway by its last submission at the end of September 2007, and on the basis that the remainder of its plan related to compliance and monitoring would be implemented within a "reasonable timeframe", the Agency did not require further action at that time.
 While the Agency in the Final Decision did not quantify what constitutes a "reasonable timeframe", it must be interpreted in light of the 90 days identified in the Agency's Show-cause Decision. The Agency provided OC Transpo with the opportunity to submit reasons why it should not be required to implement the corrective measures set out in the Show-cause Decision and set out the expectation that they would be implemented within 90 days of a final decision of the Agency. Clearly, 90 days would not have provided sufficient time to procure and install an automated stop announcement system on all OC Transpo buses, provision for which, as indicated in the Final Decision, OC Transpo stated it was planning to include in the 2008 Capital Budget for City of Ottawa Council approval.
 More than two years have passed since Mr. Green made his initial complaints about OC Transpo service and both parties acknowledge that the reasonable time frame provided to OC Transpo to implement its plan to ensure the consistent application of its policy has expired. The Agency therefore finds that OC Transpo is not in compliance with the Final Decision as some of its operators are not, by OC Transpo's own admission, following its policy for the calling out of major and requested stops.
 OC Transpo has an ongoing obligation to provide appropriate accommodation to Mr. Green and to other persons with similar disability-related needs who require that stops be called out. While the Agency recognizes that an automated stop announcement system might facilitate OC Transpo's full compliance with the Final Decision, it is the responsibility of OC Transpo to ensure the consistent application of its policy and that announcements are made and clearly heard, with or without an automated stop announcement system. When OC Transpo realized that its plan was not being executed as expected and full compliance with the calling out of all major and requested stops by operators had not been achieved within a "reasonable time frame", it should have immediately implemented measures to ensure compliance, such as the progressive disciplinary measures identified in its submission in response to the Show-cause Decision. However, despite reports indicating that it is not in full compliance, OC Transpo has been silent on the implementation of these measures.
 In light of the above, the Agency is of the opinion that there has been a change in facts and circumstances since the issuance of the Final Decision. Specifically, the Agency finds that OC Transpo's apparent misconstruing of the requirements of the Decision warrants a variance of the Decision to clarify OC Transpo's obligation at this time.
 However, the Agency is not prepared to grant the lengthy extension requested. Persons with disabilities require certainty that they will receive the accommodation ordered by the Agency without delay. It is for OC Transpo to determine the means by which it will ensure the consistent application of its own longstanding policy and that announcements of major and requested stops are made and clearly heard.
 In light of OC Transpo's apparent misconstruing of the corrective measures - specifically that the Agency had ordered the installation of an automated stop announcement system - and to clarify the time frame for the implementation of the corrective measures, the Agency finds it appropriate to vary the Decision.
 Accordingly, the Agency varies the Decision by ordering OC Transpo to ensure, within twenty (20) days from the date of this Decision that:
- All major and requested stops are called out; and,
- All announcements of stops are made in a manner that permits them to be clearly heard.
 The Agency further varies the Decision by ordering OC Transpo, commencing in May 2009 and continuing for 24 months thereafter, to make monthly updated public reports on its Web site of its compliance level on the calling out of major and requested stops and to provide Mr. Green with these reports. Such reports shall reflect the results of OC Transpo's monitoring of the compliance with its policies and procedures concerning the calling out of major and requested stops and shall also note any new complaints received by OC Transpo regarding the calling out of such stops.
 Nothing in this decision shall limit the power of the Agency's enforcement division to undertake independent investigations of compliance by OC Transpo with this decision, to investigate complaints or to levy administrative monetary penalties.
- Raymon J. Kaduck
- John Scott