Decision No. 101-AT-W-2005

Follow-up - Decision No. 110-AT-W-2006

February 24, 2005

File No. U3570/00-3

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APPLICATION

[1] On December 2, 1999, Elliott Richman filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title. Coho Ferry filed its answer on February 7, 2000. Mr. Richman did not file a reply.

BACKGROUND

[2] Pursuant to section 172 of the Canada Transportation Act (hereinafter the CTA), the Agency may, on application, inquire into a matter to determine whether there is an undue obstacle to the mobility of persons with disabilities. The Agency's determination in each case is based on the merits of the individual case before it.

[3] Following a preliminary review of this application, however, the Agency determined that any decision rendered in this application might have broad implications for foreign ferry operators operating in the Canadian transportation network. In addition, at that point in time, the Agency concluded that it was unable to determine whether an undue obstacle existed to persons with disabilities in this application without first considering the position of foreign ferry operators in general, as well as the implications of any Agency decision on foreign ferry operators. Consequently, the Agency found it necessary to conduct consultations with foreign carriers who operate to and from Canada in order to gather sufficient information prior to determining what constituted an appropriate level of service with respect to communications for the community of persons with hearing impairments, and on March 9, 2000, the Agency adjourned proceedings in this application.

[4] On June 3, 2004, the Agency released a Communications Code of Practice, Removing Communication Barriers for Travellers with Disabilities (hereinafter the Code of Practice). The release of the Code of Practice followed extensive consultations on communication barriers faced by travellers with disabilities, including such matters as telecommunication systems for reservations and information used by transportation service providers. In developing the Code of Practice, the Agency also considered the comments submitted by the foreign carriers who were consulted when proceedings were adjourned in this and other applications. Although the provisions of the Code of Practice do not specifically apply to foreign carriers, they reflect the Agency's views on the importance of TTYs to the accessibility of travel by persons with disabilities and the general principle, applicable to all operations into and out of Canada, that persons with disabilities should have equal access to transportation services.

ISSUE

[5] The issue to be addressed is whether the absence of a TTY access to Coho Ferry's Canadian reservation system constituted an undue obstacle to Mr. Richman and, if so, what corrective measures should be taken.

FACTS

[6] Mr. Richman is deaf and uses a TTY to communicate by telephone. Mr. Richman noted that the Coho Ferry Web site did not list or clearly identify a TTY contact number.

[7] Coho Ferry did not have a TTY reservation line at the time of the filing of the application. It relied on Telecommunications Relay Service (hereinafter TRS) to provide service to its hearing-impaired customers. TRS is a service that enables users of different modes of communication to interact by providing conversion between the modes of communication. An operator normally provides this conversion.

POSITIONS OF THE PARTIES

[8] Mr. Richman submits that as all of his telecommunications take place only through TTYs, the advertisement by Coho Ferry of "hearing" contact numbers but no equivalent TTY contact number poses an undue hardship for him.

[9] Mr. Richman asks that Coho Ferry include a TTY number in its Web site and other printed media made available to the public wherever a "hearing number" is listed.

[10] In its answer, Coho Ferry states that it plans to publish the Washington State and British Columbia Telecommunications Relay Service TRS numbers on its Web site and in other appropriate materials.

[11] Coho Ferry also submits that it already periodically receives TRS calls from hearing-impaired customers and that, as such, it is at a loss to understand why Mr. Richman underwent the "hardship" that he described. Coho Ferry adds that it found the appropriate numbers in the local phone books, but, nevertheless, it has no objection to publishing this information as an extra convenience for those who need it.

ANALYSIS AND FINDINGS

[12] In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.

[13] An application must be filed by a person with a disability or on behalf of a person with a disability. Mr. Richman is deaf and, as such, is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

[14] To determine whether there is an undue obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether the applicant's mobility was restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle was undue. In order to answer these questions, the Agency must take into consideration the particular facts of the case before it.

Whether the applicant's mobility was restricted or limited by an obstacle

[15] The word "obstacle" is not defined in the CTA. This implies that Parliament did not want to restrict the Agency's jurisdiction in view of its mandate to eliminate undue obstacles in the federal transportation network. Furthermore, the word "obstacle" lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement.

[16] In determining whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency looks to the travel experience of that person as expressed in the application. There is a broad range of circumstances where the Agency has found obstacles in the past. For example, there are cases of obstacles where the person was prevented from travelling, where the person was injured in the course of his or her travels (such as where the lack of appropriate accommodation during travel affects the physical condition of the passenger), or where the person was deprived of his or her mobility aid after the trip as a result of damage caused to the aid while it was being transported. Also, the Agency has found obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience were such as to detract from the person's sense of confidence, dignity, safety, or security, recognizing that these feelings may be such as to disincline a person from future travel.

The case at hand

[17] Mr. Richman submitted that as all of his telecommunications take place only through TTYs, the advertisement by Coho Ferry of its "hearing" contact numbers but no equivalent TTY contact number poses an undue hardship for him.

[18] The Agency is of the opinion that the ability to communicate independently by telephone is essential for all travellers, including persons who are deaf or hard of hearing. Although Coho Ferry does provide alternate ways to communicate with it, the Agency finds that these alternatives are not necessarily accessible to all persons with disabilities and do not allow for "real-time" communication, which is afforded through the use of telephones and TTYs. The Agency also notes that, in many cases, persons who are deaf or hard of hearing consider the use of a TTY to be the most effective way to communicate.

[19] The Agency notes that at the time of the filing of the application, Coho Ferry did not have TTY service. In light of the foregoing, the Agency finds that Coho Ferry's failure to provide access to its Canadian reservation system through the provision of TTY service constituted an obstacle to Mr. Richman and to persons who are deaf or hard of hearing in general.

Whether the obstacle was undue

[20] As with the term "obstacle", the term "undue" is not defined in the CTA in order to allow the Agency to exercise its discretion to eliminate undue obstacles in the federal transportation network. The word "undue" also lends itself to a broad meaning; it is commonly understood to mean exceeding or violating propriety or fitness; excessive; inordinate; disproportionate. As something may be found disproportionate or excessive in one case and not in another, the Agency must take into account the context in which the allegation that an obstacle is undue is made. Under this contextual approach, the Agency must strike a balance between the rights of passengers with disabilities to use the federal transportation network without encountering undue obstacles and the carriers' commercial and operational considerations and responsibilities. This interpretation is in keeping with the national transportation policy set out in section 5 of the CTA and more particularly in subparagraph 5(g)(ii) of the CTA where it is stated inter alia that conditions under which carriers or modes of transportation operate must, as far as is practicable, not constitute an undue obstacle to the mobility of persons with disabilities.

[21] While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federal transportation network to adapt their services, as far as is practicable, to the needs of persons with disabilities. There are however some impediments that have to be taken into consideration, such as security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact of adapting services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board in their own wheelchair, they may have to arrive at a terminal earlier to allow time for boarding, and they may have to wait for a longer period of time for deboarding assistance than persons without disabilities. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments that transportation service providers will encounter in trying to meet the needs of persons with disabilities. A balance has to be struck between the various responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concept of undueness.

The case at hand

[22] Having found that Coho Ferry's failure to provide access to its Canadian reservation system through the provision of TTY service at the time of the filing of the application constitutes an obstacle to Mr. Richman, and to persons who are deaf or hard of hearing in general, the Agency must now determine whether the obstacle was undue.

[23] The Agency is of the opinion that persons with disabilities should have the same options as other travellers and, in this case, they should have the option of booking directly with the carrier. Persons with disabilities have the same rights as others to full participation in all aspects of society and there can be no doubt that equal access to transportation and services is critical to the ability of persons with disabilities to exercise that right. Persons with disabilities want as much independence in life as possible and their use of transportation services is no exception. In this case, these principles can be respected through the provision of TTY service with the associated limited cost.

[24] The Agency notes that the foregoing is consistent with the Code of Practice which, under the heading "Telecommunications Systems for Reservations and Information", provides that:

Transportation service providers who use telephone lines for reservations, information or any services related to the successful execution of a trip are to provide an equal level of service to passengers with disabilities through the use of alternative communication systems, such as a TTY line.

[25] The Agency is aware that the provisions of the Code of Practice do not specifically apply to foreign carriers. However, the Code of Practice does reflect the Agency's views on the importance of TTYs to the accessibility of travel by persons with disabilities and the general principle, applicable to all operations into and out of Canada, that persons with disabilities should have equal access to transportation services.

[26] Accordingly, the Agency finds that Coho Ferry's failure to provide access to its Canadian reservation system through the provision of TTY service at the time of the filing of the application constitutes an undue obstacle to Mr. Richman and to persons who are deaf or hard of hearing in general.

MEASURES TAKEN OR TO BE TAKEN

[27] A review of Coho Ferry's Web site presently shows two TTY toll free numbers: one is available for customers in the province of British Columbia, and one is available for customers in the United States of America. This indicates that while Coho Ferry, during the pleadings, had indicated that it would publish TRS numbers, it subsequently installed TTY service and the numbers are included on its Web site. These measures undertaken by Coho Ferry should enable persons who are deaf or hard of hearing calling from within British Columbia to communicate directly with the carrier. In addition, while TTY users in British Columbia enjoy toll free access, Coho Ferry's other customers do not. The Agency notes that this provides customers within British Columbia with enhanced access to Coho Ferry's reservation line and recognizes this initiative undertaken by Coho Ferry to provide such access.

[28] However, the Agency notes that customers who are deaf or hard of hearing still have no TTY access to Coho Ferry's reservations department outside of British Columbia. As a result, the Agency finds that the action taken by Coho Ferry does not provide customers who are deaf or hard of hearing with the same ability to contact its reservations department that is afforded to other customers.

[29] Accordingly, and for the reasons set out above, the Agency finds that Coho Ferry's failure to provide TTY access to its Canadian reservation system outside of British Columbia constitutes an undue obstacle to persons who are deaf or hard of hearing.

CONCLUSION

[30] Based on the above findings, the Agency has determined that Coho Ferry's failure to provide access to its Canadian reservation system through the provision of TTY service at the time of the filing of the application constitutes an undue obstacle to Mr. Richman and to persons who are deaf or hard of hearing in general.

[31] The Agency recognizes that Coho Ferry has since completed the installation of TTY service and notes that TTY numbers are included on its Web site. While the Agency commends Coho Ferry for such initiatives, which, inter alia, enable persons who are deaf or hard of hearing calling from within British Columbia to communicate directly with the carrier, the Agency notes, however, that TTY users still have no access to Coho Ferry's Canadian reservation system outside of British Columbia.

[32] In light of the foregoing, and as Coho Ferry's failure to provide TTY access to its Canadian reservation system outside of British Columbia constitutes an undue obstacle to persons who are deaf or hard of hearing, the Agency hereby directs Coho Ferry to take either one of the following measures within sixty (60) days from the date of this Decision:

• extend the service area of its toll free TTY number to include all of Canada; and provide the Agency with a written confirmation that the TTY service has been installed; or
• complete the installation of a TTY service; and provide the Agency with a written confirmation that the TTY service has been installed.

[33] Following its review of the measures taken by Coho Ferry to comply with the Agency's direction, the Agency will determine whether further action is required.