Decision No. 47-AT-MV-2018

June 28, 2018

APPLICATION by Peter Best against Transit Windsor pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) regarding his disability-related needs.

Case number: 
17-50029

SUMMARY

[1] Peter Best filed an application with the Canadian Transportation Agency (Agency) alleging that he and others who are blind or partially sighted encounter an obstacle when using Transit Windsor’s bus service. Mr. Best requests several accommodations, including that Transit Windsor install on all its buses a system that will automatically provide internal stop announcements and external pre-boarding announcements to indicate the route that the bus is operating.

[2] In response, Transit Windsor advises that it has completed the installation of an automated systems announcement system (ASA). Transit Windsor indicates that the ASA provides the functionality that Mr. Best is seeking. Should the ASA break down on a bus, the bus will be removed from service and replaced with one with a functioning ASA. If an ASA breaks down and the bus cannot be removed from service, Transit Windsor intends to return to a previous policy of drivers only calling out stops requested by a passenger.

[3] Mr. Best submits that an obstacle persists despite the installation of the ASA, especially in instances when the ASA fails and the bus cannot be removed from service. He submits that when an ASA breaks down, drivers should be required to call out all stops and to announce the route that the bus is operating.

[4] Transit Windsor argues that to implement those measures would result in undue hardship.

[5] This Decision addresses Transit Windsor’s claim of undue hardship. For the reasons that follow, the Agency finds that to implement the measures described above along with those outlined in the Order section of this Decision would not result in undue hardship for Transit Windsor. Consequently, the Agency orders Transit Windsor to implement the measures by September 24, 2018.

BACKGROUND

[6] Mr. Best lives in Windsor, Ontario. He indicates that he has aniridia, a genetic eye condition that causes low vision in both of his eyes. Mr. Best advises that he is a frequent user of Transit Windsor’s bus service. He explains that as a person who is blind or partially sighted, he is unable to identify the route number that a bus is operating when he is waiting at a stop. Once on a bus, he is unable to identify his intended stop. In his application dated May 3, 2017, Mr. Best indicates that Transit Windsor’s accommodation measures at that time - a policy of drivers calling out stops on request – does not meet his disability-related needs.

[7] Transit Windsor’s answer to the application was received on June 19, 2017. Mr. Best filed a reply on June 27, 2017. After considering the evidence and arguments submitted by both parties, the Agency determined that additional information was required from Transit Windsor. Questions were directed to Transit Windsor and based on its September 27, 2017 response, the Agency issued Decision No. LET-AT-MV-75-2017 on November 22, 2017, directing Transit Windsor to respond to further written questions, with specific consideration of the accommodation measures in Green v. OC Transpo, a case in which the Agency previously addressed the calling out of stops on public transit. Transit Windsor’s November 22, 2017 response did not address the accommodation measures ordered in Green v. OC Transpo.

[8] On February 1, 2018, the Agency issued Decision No. LET-AT-MV-8-2018, in which it found that Mr. Best is a person with a disability, that he encountered an obstacle, and that the obstacle was largely removed by the installation of the ASA. The Agency ordered Transit Windsor to either implement the following additional measures, or to show cause why it should not be required to do so:

  1. develop a written policy and procedure requiring its drivers, in instances when the ASA fails and the bus(es) cannot be immediately removed from service, to call out all stops and to provide announcements at each bus stop indicating the route that the bus is operating;
  2. take practical measures to ensure that the policy is correctly applied, including updates to all guidance material for drivers and all relevant training programs;
  3. deliver training to drivers on new policies and procedures; and,
  4. require its drivers to report to management any time the ASA fails on a Transit Windsor bus. The report should be completed by the driver and provide confirmation that the policy was implemented. The reports must be retained in Transit Windsor’s records for compliance monitoring.

[9] Transit Windsor was given until February 22, 2018 to either confirm that it would implement the measures outlined above in full by May 15, 2018 or to show cause why it should not be required to implement them, based on the undue hardship that it would experience if it did so.

THE LAW

[10] The application was filed pursuant to subsection 172(1) of the CTA, which reads as follows:

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.

[11] The Agency determines whether there is an undue obstacle to the mobility of persons with disabilities using a three-part approach.

Part 1: The Agency will consider whether Mr. Best is a person with a disability for the purposes of Part V of the CTA.

Part 2: If it is determined that Mr. Best is a person with a disability for the purposes of Part V of the CTA, the Agency will determine whether he encountered an obstacle. An obstacle is a rule, policy, practice, or physical structure that has the effect of denying a person with a disability equal access to services that are normally available to other users of the federal transportation network.

Part 3: If it is determined that Mr. Best is a person with a disability and that he encountered an obstacle, the Agency will assess whether Transit Windsor can, without experiencing undue hardship, remove the obstacle through a general modification to the rule, policy, practice, or physical structure or, if a general modification is not feasible, through an accommodation measure.

[12] This Decision addresses the third part of this approach.

POSITIONS OF THE PARTIES

[13] According to Transit Windsor, there are approximately 1,200 bus stops in the City of Windsor. Transit Windsor submits that to implement the measures described in Decision No. LET‑AT‑MV‑8-2018, drivers would need a list of every stop and they would have to consult that list while operating a route. Transit Windsor argues that this would result in distracted driving, which current policies in Ontario seek to reduce.

[14] According to Transit Windsor, the investigation by the Transportation Safety Board of Canada (TSB) into the OC-Transpo-VIA Rail collision of September 18, 2013 showed that distracted driving has played an important role in that incident. In Railway Investigation Report R13T0192: Crossing collision VIA Rail Inc passenger train No. 51 OC‑Transpo double-decker bus No. 8017 mile 3.30, Smith Falls Subdivision Ottawa, Ontario 18 September 2013 (Railway Investigation Report), the TSB explained that safe driving requires constant alertness and sustained attention and that “cognitive distraction occurs when a driver’s attention is withdrawn from the processing of information necessary for the safe operation of a vehicle and applied instead to a non-driving activity.” According to Transit Windsor, drivers diverting their attention by referring to a list of stops will result in distracted driving, which is unsafe. For these reasons, Transit Windsor believes that a policy of drivers calling out all stops and providing pre-boarding announcements is unsafe and would cause an undue hardship. Transit Windsor therefore submits that drivers should only be required to call out stops requested by a passenger.

[15] Transit Windsor adds that since the installation of the ASA began, there have only been two system-wide failures, both of which it submits were attributable to the installation period. Since installation was completed, there has been no system-wide failure.

Mr. Best’s reply

[16] Mr. Best submits that Transit Windsor has failed to establish that the implementation of the measures outlined in Decision No. LET-AT-MV-8-2018 would result in undue hardship. According to Mr. Best, to establish undue hardship, a respondent must provide direct, verifiable, and objective evidence showing that there are constraints that make the removal of an obstacle unreasonable, impracticable or impossible. Mr. Best submits that the distracted driving argument that Transit Windsor advanced is unconvincing given that the Human Rights Tribunal of Ontario (HRTO) rejected a similar argument by the Toronto Transit Commission in Lepofsky v. Toronto Transit Commission (TTC). In that decision, the HRTO found that the TTC failed to establish that a practice of drivers calling out all stops would be dangerous. In particular, the HRTO noted that the TTC did not call an expert or “even a driver” to testify that the proposed accommodation would be unsafe. Further, the HRTO noted that some drivers were already calling out all stops, and that the TTC was already instructing drivers to call out major intersections, which it found was no different in terms of risk than announcing stops.

[17] Mr. Best also submits that the Railway Investigation Report is of little probative value. According to Mr. Best, nowhere within the report does it say that calling out of stops was a factor in the OC‑Transpo-VIA Rail accident.

ANALYSIS AND DETERMINATIONS

[18] Transit Windsor submits that for drivers to call out all stops, they would have to frequently consult a list of all 1,200 bus stops in Windsor, which would result in undue hardship due to distracted driving. The Agency finds that this argument is difficult to accept for several reasons.

[19] First, the distracted driving argument was rejected by the HRTO in Lepofsky v. TTC. In that case, the HRTO ordered TTC to call out all surface stops. As Mr. Best points out, the TTC has approximately seven times the number of stops that Transit Windsor has.

[20] Second, Transit Windsor’s distracted driving argument is not supported by evidence. Transit Windsor did not, for example, provide an expert account of whether announcing all stops would result in distracted driving. Instead, it submitted the TSB’s Railway Investigation Report, which confirms that distracted driving was a factor in the OC-Transpo-VIA Rail accident, but does not indicate that drivers calling out stops would result in distracted driving.

[21] Third, Transit Windsor’s argument that to comply with the order, drivers would have to consult a list of every stop while operating a route is not persuasive. To get from one stop to the next, drivers must know in advance the location of the next stop, so it stands to reason then that whether or not drivers make announcements, they are familiar with their routes and know the location of the next stop. Even if drivers are not familiar with a route, they would need to know in advance the location of each stop. Ultimately, there is no evidence establishing that a policy of drivers calling out all stops imposes an additional burden on drivers to be more familiar with routes than would otherwise be necessary.

[22] Finally, common sense suggests that drivers can take steps to mitigate any risk of distracted driving by, for instance, waiting until the bus stops and passengers have exited and boarded before announcing the next bus stop and starting to drive.

[23] In light of the above, the Agency finds that Transit Windsor has not established that it would suffer undue hardship if it were to implement the measures listed in Decision No. LET‑AT‑MV‑8-2018 in instances when the ASA fails and the bus(es) are not immediately removed from service.

ORDER

[24] The Agency orders Transit Windsor to implement the following additional measures:

  1. develop a written policy and procedure requiring its drivers, in instances when the ASA fails and the bus(es) cannot be immediately removed from service, to call out all stops and to provide announcements at each bus stop indicating the route that the bus is operating;
  2. take practical measures to ensure that the policy is correctly applied, including updates to all guidance material for drivers and all relevant training programs;
  3. deliver training to drivers on new policies and procedures; and,
  4. require its drivers to report to management any time the ASA fails on a Transit Windsor bus. The report should be completed by the driver and provide confirmation that the policy was implemented. The reports must be retained in Transit Windsor’s records for compliance monitoring.

[25] Transit Windsor has until September 24, 2018 to implement the measures in full.

Member(s)

Scott Streiner
William G. McMurray
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