Letter Decision No. LET-AT-R-235-2002
Application by the Council of Canadians with Disabilities against VIA Rail Canada Inc.- Request for Interim Order
By letter dated August 16, 2002, the Council of Canadians with Disabilities (CCD) filed a request for inter alia an interim injunction to prevent VIA Rail Canada Inc. (VIA) from further changing or modifying, or contracting in any way for further changes or modifications, of the Renaissance trains and from putting more Renaissance trains into service.
In support of its request, CCD is relying on subsection 28(2) of the Canada Transportation Act (CTA), the case RJR MacDonald Inc. v. Canada (Attorney General),  1 S.C.R. 312 and refers to the Canadian Transportation Agency's (Agency) past Decision No. LET-AT-R-356-2001, dated August 3, 2001, which addressed a request for an interim injunction similar to that contained in CCD's letter of August 16, 2002.
For the background to CCD's past requests for interim orders, the parties should refer to Decision No. LET-AT-R-356-2001.
As its first argument in support of its latest request, CCD submits again that the Agency agreed that CCD has made a case for an injunction halting the retrofit of the Renaissance cars, except that the irreparable harm has not been made because CCD has not established that VIA intended to retrofit the cars, or enough of the cars, during the relevant period.
As its second argument, CCD submits that the balance of convenience has now shifted and that absent an injunction, the Agency will not have the information it needs to properly investigate CCD's application and issue a decision. According to CCD, VIA is constantly shifting the target, ensuring that no timely assessment can be made of the Renaissance trains until they are all built and in service, putting off a decision in CCD's application indefinitely.
For the three-part test to be applied to applications for interlocutory injunctions, the parties should again refer to Decision No. LET-AT-R-356-2001.
With respect to CCD's first argument, as stated in Decision No. LET-AT-R-356-2001, the Agency did not agree that CCD had made a case for the injunction except for the irreparable harm issue. The Agency stated in Decision Nos. LET-AT-R-35-2001 and LET-AT-R-356-2001:
With respect to that part of CCD's application that requests an order from the Agency directing VIA not to take further steps in furtherance of the purchase of the Nightstock cars and its request that VIA be advised not to permit delivery of the cars prior to the Agency's determination of the section 172 complaint, the Agency is of the opinion that CCD has not satisfied the Agency that it should issue an order pursuant to subsection 28(2) of the CTA with respect to that specific relief requested. The Agency recognizes the importance of its mandate to eliminate undue obstacles to the mobility of persons with disabilities and is of the opinion, from its preliminary review of the evidence filed by both parties, that CCD has raised a serious issue to be considered with respect to the accessibility of the Nightstock cars. However, the Agency is of the view that the impact on VIA of having the Agency order the relief requested would cause VIA substantial harm. In reaching this conclusion, the Agency has carefully considered the economic implications of the requested relief order on VIA. On balance, the Agency is of the view that the impact of an interim order on VIA directing it to take no further steps in the purchase of the Nightstock trains or the delivery of the cars outweighs the impact on persons with disabilities, as presented by CCD, should the Agency not issue the relief requested.
With respect to CCD's second argument, the Agency recognized in Decision No. LET-AT-R-356-2001 that it would be preferable for passengers with disabilities to know in advance that VIA, as a national passenger rail service provider, is offering a truly accessible service. While the Agency is still of the view that it is before the cars are put into service that changes can probably most easily and least expensively be implemented, the Agency will eventually issue a final decision on whether the Renaissance cars present any undue obstacles to the mobility of persons with disabilities. If the Agency comes to the conclusion that the railway cars do present some undue obstacles, VIA will then have to implement the corrective measures ordered by the Agency even if such corrective measures are more difficult and expensive to implement as a result of VIA's decision to proceed with the retrofitting and the putting into service of the railway cars prior to the Agency decision under section 172 of the CTA. Therefore, the irreparable harm CCD could face with the railway cars going into service before the Agency can exercise its mandate under section 172 of the CTA has not been established.
On the other hand, granting CCD's interim relief will inevitably cause some harm to VIA. VIA would have to halt the retrofit process and the Renaissance service already started, thereby suffering a financial impact.
On balance thereof, the Agency is of the view that the impact of an interim order on VIA directing it to take no further steps in the retrofitting and putting into service of more Renaissance trains outweighs the impact on persons with disabilities, as presented by CCD, should the Agency issue the order requested.
In light of the above, the Agency concludes that CCD has still not met the test for an interim order under subsection 28(2) of the CTA. Therefore CCD's application for an interim order is hereby dismissed.
CCD's request for costs will be dealt with separately by the Agency once the parties have complied with Agency Decision No. LET-AT-R-232-2002, dated August 14, 2002.