Decision No. 175-AT-R-2003

March 27, 2003

APPLICATION by the Council of Canadians with Disabilities pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, regarding the level of accessibility of VIA Rail Canada Inc.'s Renaissance passenger rail cars.

File No.:

File No. U3570/00-81

PARTIES
INDIVIDUALS WHOSE REPORTS AND COMMENTS FORM PART OF CCD'S AND VIA'S SUBMISSIONS
DEFINITIONS
ABBREVIATIONS
OVERVIEW
BACKGROUND
FRAMEWORK OF THE DECISION
PRELIMINARY ISSUES
DETERMINATION PURSUANT TO SECTION 172 OF THE CTA OF OBSTACLES AND WHETHER THEY ARE UNDUE
Appendix A
Appendix B
Diagram of the economy coach car suite and the service car "accessible suite"

PARTIES

The Council of Canadians with Disabilities (CCD) was founded in 1976 and advocates at the national level to improve the status of women and men living with disabilities by eliminating inequalities and discrimination. CCD is composed of representatives from provincial disability organizations across Canada as well as major national disability organizations.

VIA Rail Canada Inc. (VIA), which was established in 1977, has been a Crown corporation since 1978 and is responsible for Canada's national passenger rail transportation. VIA was incorporated under the Canadian Business Corporations Act, R.S.C., 1985, c. C-44, with the Government of Canada as the corporation's sole shareholder and reports to the Government of Canada through the Minister of Transport. VIA's management report to an independent board of directors.

Intervener

Transport 2000 Canada (Transport 2000) is a non-profit national association, incorporated under Part II of the Canadian Business Corporations Act, which was founded in 1976 to defend the interests of Canadian public transport users and to promote environmentally, socially and economically sustainable modes of transport. Transport 2000 is a volunteer-based organization supported by its members without government assistance.

Top of Page

INDIVIDUALS WHOSE REPORTS AND COMMENTS FORM PART OF CCD'S AND VIA'S SUBMISSIONS

CCD

Eric Boyd, in his capacity as National Managing Director of the Canadian Paraplegic Association, forwarded a letter to VIA on November 25, 2000.

Glen Fisher is a Professional Engineer and president of CPCS Technologies 2000, Ltd.

CPCS Technologies 2000, Ltd. is a railway specialist, federally incorporated company with international contracts for parts sales, applications engineering and management (choice of equipment for any application) and railway rolling stock and equipment supply projects in co-operation with large international corporations.

David Harding is the president of Motion Specialties Inc., a company established in 1985 which specializes in the manufacture and sale of wheelchairs for persons with disabilities.

Lucie Lemieux-Brassard is a member of CCD's Transportation Committee who attended the viewing of the Renaissance Cars on September 20, 2001. She uses a power wheelchair.

Donna McInnis is an Access Services Coordinator for the Ontario March of Dimes.

Laurie Ringaert is the president of Universal Design International Consulting, a company established in 2001 which specializes in universal design (accessibility), consultation, audits, research and education. Ms. Ringaert is also the director of the Universal Design Institute, Faculty of Architecture at the University of Manitoba, which has the mandate to provide research and education in universal design. She is a founding member and past Chair of the Canadian Centre on Disabilities Studies.

Ms. Ringaert has served on various disability-related boards and committees, including the Canadian Standards Association's committees on Barrier-Free Design and Automated Banking Machines and has provided advice to the CSA and ISO committees on Design for Aging Standards. Ms. Ringaert also served on the committee on the National Building Code Fire, Safety and Occupancy Committee (Part3) where she is Chair of the Barrier-Free Working Group.

Ron Ross is a member of CCD's Transportation Committee who attended the viewing of the Renaissance Cars on September 20, 2001. He uses a wheelchair.

Stephen Ryan, P. Eng., is a rehabilitation engineer and the Seating Research Co-ordinator at the Bloorview MacMillan Children's Centre, the largest paediatric rehabilitation centre in Canada. As Director of Clinical Technology Service from 1997 until 2001, Mr. Ryan managed the wheelchair seating service which assessed the adaptive seating and wheeled mobility needs of about 500 children, youth and adults annually. His areas of expertise are: (1) research, development and evaluation of postural support systems for people with physical disabilities and (2) wheelchair transportation safety, including wheelchair tie-downs and occupant restraint systems on motor vehicles. Mr. Ryan has co-ordinated research projects, written numerous papers and presented research papers relating to wheelchairs and adaptive seating.

Ron Woollam is a Professional Engineer (Mechanical) with forty years' experience in the railway industry with a major Canadian railway company, a major manufacturer of railway rolling stock and as a private consultant. Mr. Woollam is president and director of engineering of Garex Consultants International, Inc., which provides engineering, design, consulting and project management services to the railway and steel fabrication sectors of industry.

VIA

Garry Herman is a Professional Engineer (Structural) employed with VIA since 1985. He has been VIA's Manager of Brakes, Suspension and Rolling Stock Acquisition Programs since 1999, prior to which he held different engineering positions. Mr. Herman's previous experience includes transportation planning.

Top of Page

DEFINITIONS

"Accessible suite": the term used by VIA to describe the bedroom and washroom unit in the Renaissance Cars intended to be used by persons with disabilities, including persons who use wheelchairs.
Crash Energy Management Zone: areas located at the ends of the Renaissance Cars, which absorb energy by crumpling or crushing during end-of-car impacts.
Personal Wheelchair: a passenger-owned wheelchair that requires a minimum clear floor area of 750 mm [75 cm] by 1200 mm [120 cm] to accommodate the wheelchair and its occupant and a minimum clear turning space of 1500 mm [150 cm] in diameter.
Personal Wheelchair footprint: minimum clear floor area required for a stationary Personal Wheelchair.
Service animal: an animal that is required by a person with a disability for assistance and is certified, in writing, as having been trained to assist a person with a disability by a professional service animal institution.
Train consist: a grouping of rail cars connected together to make up a train.
Wheelchair-accessible: accessible to a person using a Personal Wheelchair.
Wheelchair tie-down: a space to accommodate an occupied Personal Wheelchair and a service animal.

These definitions are taken from the Agency's Code of Practice - Passenger Rail Car Accessibility and Terms and Conditions of Carriage by Rail of Persons with Disabilities.

Top of Page

ABBREVIATIONS

ACAT: Minister of Transport's Advisory Committee on Accessible Transportation
Agency: Canadian Transportation Agency
ALSTOM: ALSTOM Transport Ltd.
Bombardier: Bombardier Transport, a division of Bombardier Inc.
CCD: Council of Canadians with Disabilities
Charter: Canadian Charter of Rights and Freedoms
CSA: Canadian Standards Association
CTA: Canada Transportation Act
NTA: National Transportation Agency
Rail Code: Code of Practice - Passenger Rail Car Accessibility and Terms and Conditions of Carriage by Rail of Persons with Disabilities
RTC: Railway Transport Committee of the Canadian Transport Commission
VIA: VIA Rail Canada Inc.

Top of Page

OVERVIEW

On December 1, 2000, VIA Rail Canada Inc. (hereinafter VIA) purchased 139 passenger rail cars (including parts) from ALSTOM Transport Ltd. (hereinafter ALSTOM) which increased the size of VIA's fleet by approximately one-third. Initially, $130 million was allocated by VIA for the purchase and commissioning of these cars into service. These rail cars were known at that time as "Nightstock" equipment and were developed in Europe in 1990 to offer fast overnight train service between Europe and the northern regions of the United Kingdom through the Channel Tunnel. However, for a variety of reasons, the contract for the trains was suspended in 1998 and the rail equipment, which was at various stages of completion, was offered for sale.

According to VIA, the Nightstock trains "were a unique purchase unavailable at any other time and at a remarkably low cost" because, in its view, $130 million would have normally permitted the purchase of only 39 passenger rail cars and there would have been considerable delay in the development, design, engineering and manufacturing of new equipment.

At the time of VIA's purchase, 64 cars were completed, 13 were partially completed and 62 were shells. These cars were allocated as 72 sleeper cars, 47 coach cars and 20 service cars, with the cars designed to be used in train consists that always include a service car. VIA renamed the Nightstock equipment "Renaissance" and determined that some of the sleeper cars would be converted into baggage and dining cars.

At the end of its assembly process, VIA's Renaissance fleet will be comprised of 19 service cars, 27 sleeper cars, 11 baggage cars, 6 dining cars, 14 VIA-1 coach cars, and 33 economy coach cars. In addition, while VIA advises that this allocation may change, the following cars will be built for growth, peak demand periods and damage replacement: 1 service car, 8 sleeper cars, 3 baggage cars, and 2 dining cars. Finally, 15 sleeper car shells will be stored.

VIA plans to introduce the Renaissance trains in different phases for four different markets: Montréal-Toronto overnight service; Montréal-Halifax day and overnight service; Montréal-Gaspé day and overnight service; and Québec-Windsor Corridor day service. The first phase was completed in June 2002 with the introduction of three Renaissance train consists, each comprised of 2 economy coach cars, 1 service car and 2 sleeper cars, for the Montréal-Toronto overnight service. Since that time, Renaissance trains have been introduced on other routes as well, such as Montréal-Ottawa and Montréal-Québec.

VIA's intention is to accommodate persons with disabilities who use wheelchairs on the Renaissance trains in several ways, including: in an "accessible suite", composed of a bedroom and a washroom, located in each of the service cars; in a wheelchair tie-down, located in each of the economy coach cars; or, in regular passenger seats in the coach cars, provided the person is willing and able to be transferred from his/her own wheelchair to a passenger seat.

On December 4, 2000, the Council of Canadians with Disabilities (hereinafter CCD) filed an application pursuant to subsection 172(1) of the Canada Transportation Act (hereinafter the CTA) with the Canadian Transportation Agency (hereinafter the Agency) as a result of serious concerns that it and its members have regarding the accessibility of the Renaissance equipment to persons with disabilities. CCD's application was initially filed in the belief that VIA was, at that time, conducting consultations and further testing to determine the suitability of this equipment for purchase by VIA. However, VIA subsequently confirmed that the purchase of the equipment had, in fact, been completed on December 1, 2000. Although the cars were not in service at the time of the filing of CCD's application, CCD expressed the view that the issues of the design of the rail cars as well as the services proposed to be provided on the Renaissance Cars should be examined by the Agency pursuant to subsection 172(1) of the CTA to determine whether they constitute undue obstacles to the mobility of persons with disabilities.

CCD submits that the community of persons with disabilities has long been of the view that VIA's existing fleet of rail equipment presents a variety of physical barriers to accessibility, which prevent persons with disabilities from having equal access to VIA's rail transportation network. Furthermore, CCD has indicated that the community of persons with disabilities has been resigned to accepting the level of accessibility provided with this equipment in hopes that the next generation of equipment would be designed and introduced with a much higher level of accessibility.

Although, pursuant to subsection 170(1) of the CTA, the Agency has the power to make regulations for the purpose of eliminating undue obstacles in the federal transportation network, in keeping with the Government of Canada's policy to pursue voluntary approaches thoroughly before proposing regulations, a code of practice was developed as an alternative to regulations. The Agency, therefore, undertook a consultative process that resulted in the issuance of rail equipment minimum accessibility standards in a voluntary code of practice in February 1998: the Code of Practice - Passenger Rail Accessibility and Terms and Conditions of Carriage by Rail of Persons with Disabilities (hereinafter the Rail Code). While the Rail Code is not mandatory, the participation of VIA in the process to develop it and VIA's express commitment to the Rail Code raised expectations for both the Agency and the community of persons with disabilities that the standards set out in the Rail Code would be followed by VIA. In view of the barriers to accessibility known to exist in the existing fleet, this was viewed as an important commitment for the introduction of new equipment.

VIA's position has been that the Renaissance Cars meet and, in some cases, exceed the equipment standards set out in the Rail Code based on its view, in part, that the Renaissance Cars are not new cars. The Agency has concluded that there are significant problems with the accessibility of the Renaissance Cars. Furthermore, the Agency has determined that the Renaissance Cars are new cars and should meet the higher level of accessibility for new cars as set out in the Rail Code. However, it is apparent that they were not designed to provide this higher level of accessibility expected in new rail equipment in Canada. The Agency notes the significant concerns expressed by CCD as, in CCD's view, VIA lost an important opportunity to achieve that higher level of accessibility with the purchase of the Renaissance Cars. In this regard, the Agency has considered pursuant to subsection 172(1) of the CTA whether features of the Renaissance Cars constitute undue obstacles to the mobility of persons with disabilities.

The Agency notes that CCD's application with respect to the accessibility of the Renaissance Cars is made mainly in the context of the obstacles that features of the cars pose for persons using wheelchairs. Therefore, the Agency's analysis mainly addresses the accessibility of the Renaissance Cars to persons who use wheelchairs, although the Agency has also examined some aspects of the accessibility of the cars to persons who have other disabilities, such as visual impairments where CCD has raised it.

Given the complexity of this Decision, the Agency finds it appropriate to provide the following outline of the Decision.

In this section, the Agency provides an overview of the Decision. The Agency then describes the pleadings process and some of the specific elements of its investigation in the "Background" section. Following that section, the Agency discusses the framework within which this Decision has been made, including the applicable legislation, the Rail Code, the Canadian Standards Association's Barrier-Free Design Standard, the Agency's adoption of the Personal Wheelchair as the standard against which to determine wheelchair accessibility, as well as a review of human rights principles and principles of accessibility.

In the "Preliminary Issues" section, the Agency disposes of three preliminary issues that VIA brought forward in the pleadings. Specifically, the Agency found that it has the jurisdiction and the expertise to consider and determine CCD's application, and that the Renaissance Cars are newly manufactured equipment for the purposes of the Rail Code.

In the next section, the Agency discusses the concepts of "obstacle" and "undueness" and considers the parties' submissions regarding undueness in general, VIA's network, and general structural and economic arguments.

In the course of the proceedings, inspections of the Renaissance Cars were carried out. Draft inspection reports were circulated to the parties for comments. The parties filed comments and clarifications which were incorporated into the report which was finalized on December 10, 2002 and was placed on file as part of the official record. Attached as Appendix A to this Decision is a copy of the report which has been edited and modified for the purposes of this Decision. This report forms the basis for the facts and dimensions reflected in the Agency's analysis in this Decision. This report will be referred to as the Agency's inspection report later on in this Decision.

CCD raised forty-six concerns regarding the accessibility of the Renaissance Cars. The Agency has organized the Decision in such a way that the concerns are divided according to the Agency's findings in the Decision, as follows.

Ten concerns were identified by the Agency as being properly within the purview of the Department of Transport as safety concerns:

the Crash Energy Management Zone in the coach cars:
- portion of the washrooms in the Crash Energy Management Zone,
- must travel through the Crash Energy Management Zone to reach the "accessible washroom", and
- means of exit for persons who use wheelchairs;
the exit from the "accessible suite" through the Crash Energy Management Zone in the service cars;
the safety of:
- the wheelchair tie-down,
- the bridge plates and boarding lifts,
- the retractable stairs, and
- the gangway while the train is in motion;
the potential misalignment of the gangway in the event of a derailment; and,
the use of electro-luminescent signs for emergency exit and other signs.

Eleven concerns were then determined by the Agency to not constitute obstacles in light of the evidence before the Agency at this time:

the accessibility of:
- the coach car washrooms,
- the aisles in the coach cars, and
- the aisles in the sleeper cars to persons who use mobility aids other than wheelchairs;
the turning diameter in the vestibule of the service cars;
the requirement to store wheelchairs in the storage room in the service cars or in the baggage cars (The reader should note that this matter is separate from the question of whether persons who use Personal Wheelchairs should be able to retain their wheelchair in the "accessible suite", which is discussed later.);
the bench seat in the "accessible suite" in the service cars;
the space in the "accessible washroom" in the service cars:
- to perform front transfers to the toilet,
- to access the sink,
- to have an attendant in the washroom, and
- to close the door to have privacy in the washroom (The reader should note that this matter is separate from the question of whether the space in the "accessible washroom" to perform a side transfer to the toilet is an obstacle, which is discussed later.); and,
the onboard services to be provided by VIA to persons with disabilities.

Of the twenty-five obstacles found by the Agency in the Renaissance trains, the following eight were found not to be undue:

exterior doors of the service car situated at the end of the car closest to the "accessible suite";
the width of the aisles in:
- the service cars,
- the sleeper cars, and
- between the seats in the coach cars;
the 25-cm (9.84") step-up onto the raised seat platform in the coach cars, except insofar as these features are implicated in the lack of space for a service animal;
the height of the toilet seat in the "accessible washroom" in the service cars;
the lack of a shower in the "accessible washroom" in the service cars; and
the train consists, with the exception of the Montréal-Toronto overnight train consist.

The Agency made preliminary findings that the following fourteen obstacles are undue:

the width of the doors in the "accessible suite";
the fact that persons using Personal Wheelchairs will not be able to retain their own wheelchairs with them in the "accessible suite";
the insufficient space beside the toilet in the "accessible suite" to allow persons using Personal Wheelchairs to effect a side transfer to the toilet;
the lack of a 150-cm (59.06") turning diameter in the "accessible suite";
the width of the aisle between the two washrooms in the economy coach cars;
the inadequate clear floor space of the wheelchair tie-down to accommodate persons using Personal Wheelchairs, including those accompanied by a service animal;
the amount of manoeuvring space, including the lack of a 150-cm (59.06") turning diameter, in the wheelchair tie-down area;
the width of the bulkhead door openings in the economy coach cars;
the lack of seating either beside or facing the wheelchair tie-down for an attendant ;
the insufficient space in the economy coach cars for persons who use service animals;
the lack of movable aisle armrests on the double seat side of the coach cars;
the riser heights and stair depths of the retractable stairs;
the lack of closed stair risers on the stairs; and,
the Montréal-Toronto overnight train consist and the fact that persons using the wheelchair tie-down will not have access to the "accessible washroom".

Finally, the Agency has decided to defer its undueness analysis with respect to three of the obstacles in view of its decision to first consider the level of accessibility and accommodation provided in the "accessible suite" in the service cars:

the inaccessibility of the coach car washrooms to persons using Personal Wheelchairs;
the location of the "accessible washroom" in another car; and,
the inaccessibility of the sleeper car to persons using Personal Wheelchairs.

For ease of reference, a chart setting out the Agency's findings in this case is attached as Appendix B to this Decision.

As set out in this Decision, the Agency's preliminary finding is that fourteen obstacles are undue obstacles to the mobility of persons with disabilities; however, prior to finalizing its decision, the Agency has determined that it is prepared to provide VIA with a final opportunity to provide specific evidence and related argument to show cause to the Agency why these obstacles are not undue. In the final section of this Decision, VIA will be required to specifically address nine requirements for information and supporting evidence. Finally, the Agency considered CCD's request for costs in this matter and, in view of the interim nature of this Decision, has decided to defer its consideration of this issue until the issuance of its final decision.

The preliminary findings of undueness with respect to the fourteen obstacles represent the view of two of the three Members assigned to consider this application; the third Member disagrees with the majority on the preliminary findings of undueness and his reasons are found at the end of this Decision.

Top of Page

BACKGROUND

The following provides a brief summary of the main pleadings in this case.

In its application, CCD sought a final order pursuant to section 172 of the CTA and an interim order pursuant to subsections 27(1) and 28(2) of the CTA, directing that VIA not enter into any agreement or take any further action to exercise any option to purchase certain passenger rail equipment known as the Renaissance Cars. CCD also requested, as part of the interim order, a prospective award of costs pursuant to section 25.1 of the CTA.

On December 12, 2000, VIA advised the Agency that the purchase of the Renaissance Cars from ALSTOM was completed on December 1, 2000. VIA expressed the view that, because the agreement with ALSTOM was finalized on that date, CCD's request for an interim order should be dismissed.

On December 14, 2000, in light of VIA's statement that the purchase agreement with ALSTOM was finalized on December 1, 2000, CCD amended its original application by also seeking an order from the Agency to prevent the delivery of these rail cars prior to the Agency's final determination of the application.

By Decision No. LET-AT-R-393-2000 dated December 18, 2000, the Agency asked both parties to file further submissions with respect to CCD's request of December 14, 2000 that the Agency issue an interim order. In addition, the Agency asked VIA to submit its existing plan to make the Renaissance Cars accessible to persons with disabilities.

On December 18, 2000, CCD requested the Agency to direct VIA to produce its agreement with ALSTOM to CCD. By Decision No. LET-AT-R-397-2000 dated December 21, 2000, the Agency advised that it was not convinced, at that particular stage in the proceedings, that CCD's request should be granted. However, the Agency advised that it would consider CCD's request once VIA had filed additional information requested by the Agency.

On January 3 and 8, 2001, VIA and CCD, respectively, filed their submissions in response to Decision No. LET-AT-R-393-2000.

By Decision No. LET-AT-R-19-2001 dated January 16, 2001, the Agency, after having found that new matters were raised by CCD in its submission of January 8, 2001, granted VIA until January 17, 2001 to file its reply to the new matters and further ordered the production of certain documents by VIA. These documents consisted of: (1) a copy of the terms of the agreement, signed on or about December 1, 2000, between VIA and ALSTOM for the purchase of the rolling stock; (2) copies of all terms of agreement, including any side agreements VIA may have signed, with any firm(s) to complete the construction, modification or retrofitting of the rolling stock purchased from ALSTOM; and (3) any schedule VIA may have established for the retrofitting, modification and construction of the rolling stock or, in the event that no such schedule existed, an indication of when the first retrofitting, modification and construction would commence.

VIA filed with the Agency its response to CCD's reply and a copy of its agreement with ALSTOM and requested that the agreement be treated in a confidential manner. VIA also advised the Agency that it did not have a schedule for the retrofitting, modification or construction of the Renaissance Cars, nor had it entered into any agreement for such. VIA stated that it anticipated that 24 Renaissance Cars would be commissioned for use by the end of December 2001.

On January 17, 2001, the Agency received a request from Transport 2000 for intervener status in opposition to CCD's application. Transport 2000's submission in support of this request was filed on February 28, 2001. By Decision No. LET-AT-R-357-2001 dated August 3, 2001, the Agency found that interest was sufficient to grant it intervener status.

By Decision No. LET-AT-R-35-2001 dated January 24, 2001, the Agency denied CCD's requests for both an interim award of costs and for an interim order directing VIA not to take any further action in the purchase of the Renaissance Cars and not to take delivery of the Renaissance Cars pending the Agency's determination of CCD's application. With respect to CCD's request for an interim order preventing VIA from entering into contracts for the retrofitting of the Renaissance Cars, the Agency stayed the request for relief until it received certain information from VIA. The Agency requested that VIA file with the Agency a commitment that it would not enter into any contracts for the construction, manufacturing or retrofitting of the Renaissance Cars pending a final determination by the Agency on CCD's application. Finally, the Agency required VIA to provide to the Agency, with a copy to CCD, as soon as they were available, copies of proposals and plans for the construction or retrofitting of the Renaissance Cars and a schedule for their assembly, construction and retrofitting.

VIA responded that it could not provide the commitment requested by the Agency. In addition, VIA stated that the Agency does not have the jurisdiction to consider the matter on a prospective basis. VIA stated that "[t]he Agency's adjudicative jurisdiction should await a proper factual foundation based on individual complaints arising in existing circumstances" and requested that the Agency make a final decision on the subsection 172(1) application on the record as it then existed.

By letter dated February 1, 2001 to the Agency, CCD responded to VIA's comments and requested additional relief from the Agency.

In response to the jurisdictional question raised by VIA, by Decision No. LET-AT-R-45-2001 dated February 2, 2001, the Agency provided the parties with an opportunity to comment on this issue. Following a review of the parties' submissions, the Agency, in its Decision No. LET-AT-R-80-2001 dated February 22, 2001, found that it has jurisdiction to consider CCD's application pursuant to subsection 172(1) of the CTA.

By Decision No. LET-AT-R-81-2001 dated February 22, 2001, the Agency required VIA to confirm, by February 23, 2001, that it would provide information to the Agency, to be copied to CCD, that would indicate when the retrofitting or construction of the Renaissance Cars would commence.

Furthermore, by Decision No. LET-AT-R-82-2001 also dated February 22, 2001, the Agency denied CCD's requests for certain relief, including a request for an interim award of costs, a request that the contract between ALSTOM and VIA be disclosed to CCD, and a request that certain of its consultation costs be reimbursed by VIA.

On February 23, 2001, VIA responded to Decision No. LET-AT-R-81-2001 by stating that no retrofitting or construction plans had been prepared and that it had no fixed time when they would be available.

On March 9, 2001, the Agency was served with VIA's Notice of Motion requesting leave to appeal Decision Nos. LET-AT-R-80-2001, LET-AT-R-81-2001 and LET-AT-R-82-2001. Upon consideration of the materials filed by the parties, on May 1, 2001, the Federal Court of Appeal denied VIA's application for leave to appeal the three decisions.

By Decision No. LET-AT-R-166-2001 dated March 29, 2001, the Agency required VIA to advise, by March 30, 2001, whether it would provide information to the Agency, once available, indicating when the retrofitting or construction of the Renaissance Cars would commence and, when the final design of the Renaissance Cars had been determined, whether VIA would provide a copy of the design to the Agency. The Agency also requested the concurrence of the parties to extend the statutory deadline of 120 days in which, pursuant to subsection 29(1) of the CTA, the Agency is required to make its decision on CCD's application.

In response to Decision No. LET-AT-R-166-2001, CCD advised that it would consent to an extension of the statutory deadline if the Agency issued the interim order that it had requested and VIA requested that the Agency make its decision within the time limits fixed by statute.

On April 3, 2001, the Agency issued Decision No. LET-AT-R-176-2001 and Order No. 2001-AT-R-122. In its Decision No. LET-AT-R-176-2001, the Agency stated that it continues to have a complaint before it that requires a substantive determination pursuant to section 172 of the CTA and, in order for the Agency to fulfill its statutory mandate, it would continue with its investigation beyond the 120-day statutory deadline. By Order No. 2001-AT-R-122, the Agency ordered VIA to produce, as soon as they were available, a schedule indicating when the retrofitting or construction of both the substantially completed and the uncompleted Renaissance Cars would begin in addition to a copy of the final design of the Renaissance Cars for both the substantially completed cars and the uncompleted cars.

On April 3, 2001, Order No. 2001-AT-R-122 was made an Order of the Federal Court of Canada, Trial Division pursuant to section 33 of the CTA.

On April 25, 2001, the Agency was served with the Motion Record of VIA requesting leave to appeal Decision No. LET-AT-R-176-2001 and Order No. 2001-AT-R-122, both dated April 3, 2001, to the Federal Court of Appeal.

On May 9, 2001, VIA filed with the Federal Court of Canada, Trial Division a motion to stay the Agency's production order and the proceeding.

On May 18, 2001, the Federal Court of Canada, Trial Division issued an Order which allowed, in part, VIA's motion for a stay of the proceeding. Pursuant to this Order, further consideration of CCD's application by the Agency was stayed, pending determination by the Federal Court of Appeal of VIA's application for leave to appeal Order No. 2001-AT-R-122/Order T-580-1 of the Federal Court of Canada, Trial Division dated April 3, 2001.

By letter dated May 28, 2001, CCD reiterated its requests of February 24 and March 29 that the Agency issue an interim order to suspend the retrofitting process of the Renaissance Cars pending a final determination on its application. CCD also requested that the Agency file in the Federal Court of Canada, Trial Division its past decisions which had not yet been filed and that the Agency enforce its decisions and orders pursuant to the Federal Court Rules, 1998. CCD provided the Agency with a newspaper article dated May 25, 2001 stating that VIA had entered into a contract with Bombardier Inc. (hereinafter Bombardier) to refurbish and modify the Renaissance Cars.

In its Decision No. LET-AT-R-261-2001 dated May 31, 2001, the Agency reminded VIA that it was required to comply with Order No. 2001-AT-R-122 dated April 3, 2001 and further requested VIA to answer CCD's request for action to be taken by the Agency and to comment on the accuracy of the allegation that VIA had entered into a contract with Bombardier to refurbish and modify the Renaissance Cars.

By letter dated June 4, 2001, VIA advised that it considered that the May 18, 2001 Order of the Federal Court of Canada, Trial Division meant that CCD's application and all related orders had been stayed, such that the Agency could not ask the parties to make further submissions. VIA also advised that there were no documents that responded to Order No. 2001-AT-R-122. On the same date, VIA also responded by filing a Notice of Motion requesting the Federal Court of Canada, Trial Division, to find that the Agency was in contempt of the Court's May 18, 2001 Order or, in the alternative, that an order be issued for directions that the Agency must not consider further the matters raised in CCD's application until the Federal Court of Appeal issued its decision on VIA's pending motion for leave to appeal; or that an order be issued that the Agency be prohibited from making any further requests or orders directed to VIA.

In its Decision No. LET-AT-R-265-2001 dated June 4, 2001, the Agency noted that the May 18, 2001 Federal Court of Canada, Trial Division Order, which granted, in part, VIA's motion for a stay of the Agency's proceedings, the Agency's Decision No. LET-AT-R-176-2001 and the Agency's production Order No. 2001-AT-R-122 was giving rise to different interpretations by the parties and that, because of this, the Agency would be filing a motion for clarification with the Federal Court of Canada, Trial Division. This motion was filed on June 5, 2001.

On June 8, 2001, the Federal Court of Appeal dismissed, with costs, VIA's motion for leave to appeal Decision No. LET-AT-R-176-2001, dated April 3, 2001, regarding the Agency's jurisdiction to continue with its inquiry into CCD's application past the statutory deadline and Order No. 2001-AT-R-122, also dated April 3, 2001, which ordered VIA to produce certain documents. Accordingly, on June 14, 2001, VIA withdrew its June 4, 2001 Notice of Motion regarding contempt.

By letter dated June 11, 2001, CCD reiterated its request for an interim order pursuant to subsection 28(2) of the CTA to halt the retrofitting process of the Renaissance Cars and requested the following additional interim orders:

an order for interim costs with respect to CCD's initial motion for an interim order, which it made in January 2001, and with respect to VIA's challenges of the Agency's jurisdiction in the Federal Court of Appeal; and
an order for production of the ALSTOM and the Bombardier contracts.

By Decision No. LET-AT-R-278-2001 dated June 13, 2001, VIA was required to respond to Decision No. LET-AT-R-261-2001 and Order No. 2001-AT-R-122 and to CCD's latest requests. On June 15, 2001, VIA responded that there were still no documents that responded to that Order. VIA also stated that there was no need for the Agency to file orders with the Federal Court of Canada, Trial Division or to move to enforce them, and that there were no reasons for the Agency to depart from the normal process in which costs, if any, are awarded to the successful party at the conclusion of an application. CCD responded on June 16, 2001.

By Decision No. LET-AT-R-304-2001 dated June 29, 2001, the Agency required VIA to file, by July 5, 2001, a copy of its services agreement with Bombardier and Schedules 1 to 6 to the agreement with ALSTOM. The Agency further advised that it would not, at that particular point in the proceedings, issue the interim order to suspend the retrofitting process and preserve the status quo as requested by CCD. However, the Agency advised that it would further consider CCD's request once VIA had filed its reply to the Agency's request that it file, by July 6, 2001, certain additional information and documentation pertaining to CCD's request for an interim order and to the Agency's determination pursuant to subsection 172(1) of the CTA.

On July 5, 2001, VIA responded, in part, to Decision No. LET-AT-R-304-2001. Included with its response were copies of the service agreement between VIA and Bombardier and the schedules to the agreement with ALSTOM, which VIA requested be treated in a confidential manner by the Agency. VIA requested and received an extension to file a complete reply and on July 13, 2001, VIA completed its reply.

By Decision No. LET-AT-R-356-2001 dated August 3, 2001, the Agency dismissed CCD's application for an interim order pursuant to subsection 28(2) of the CTA on the basis that, while the Agency found that CCD had raised a serious issue to be tried with respect to the accessibility of the Renaissance Cars, CCD had failed to demonstrate that the coming into operation of the Renaissance Cars prior to an Agency determination pursuant to subsection 172(1) of the CTA would cause irreparable harm to persons with disabilities. The Agency also determined that, on balance, the impact on VIA of an interim order directing it to take no further action with respect to the retrofitting of the Renaissance Cars outweighed the impact on persons with disabilities, as presented by CCD.

By Decision No. LET-AT-R-377-2001 dated August 15, 2001, the Agency denied CCD's requests for costs at that particular stage in the proceedings but advised that it would entertain submissions in this respect, if deemed appropriate, once a final decision on CCD's application was issued. The Agency further advised the parties that CCD's request that the Agency file its decisions and orders before the Federal Court of Canada, Trial Division was denied. Finally, the Agency expressed the view that, as stated in Decision No. LET-AT-R-82-2001, CCD had not demonstrated to the satisfaction of the Agency that, at that point in the proceedings, the ALSTOM and Bombardier contracts were relevant to an undue obstacle determination pursuant to subsection 172(1) of the CTA and that they should be disclosed.

By Decision No. LET-AT-R-396-2001 dated September 7, 2001, the Agency advised the parties that a meeting with officials of each party, in addition to a viewing and inspection of the Renaissance Cars, would be held in Montréal, Quebec on September 20, 2001. The Agency advised the parties that the meeting would be held "off the record" as it was not intended to allow either party the opportunity to present their respective submissions to the Agency with respect to CCD's application. The Agency also advised the parties that the Agency's experts, in the presence of both parties' experts, would conduct an inspection of the Renaissance Cars, following which a report consisting of a factual description of the accessibility features of the Renaissance Cars and a description of the changes to be made according to plans submitted by VIA would be prepared by the Agency's experts.

Following the meeting and inspection, the draft Inspection Report of VIA's Renaissance Cars was prepared and provided to CCD and VIA for comments. On October 25, 2001, CCD and VIA filed their comments on the report with the Agency. By Decision No. LET-AT-R-436-2001 dated November 2, 2001, the Agency requested VIA to provide, by November 6, 2001, clarification on some of the comments contained in its letter of October 25, 2001 and on November 5, 2001, VIA provided the Agency with its response to Decision No. LET-AT-R-436-2001.

By Decision No. LET-AT-R-442-2001 dated November 9, 2001, the Agency advised the parties that the draft Inspection Report of VIA's Renaissance Cars had been modified to reflect some of the comments made by VIA. The parties were provided with a copy of the revised report and advised that it had been adopted by the Agency and placed on the record.

On November 9, 2001, VIA requested that the parties be permitted to present oral argument on CCD's application. By letter dated November 15, 2001, CCD objected to VIA's request that oral argument be allowed.

On November 15, 2001, CCD filed interrogatories, to which VIA responded. Upon receipt of VIA's responses, CCD submitted that VIA was "totally unresponsive" and requested that the Agency rule on the relevance of CCD's questions and VIA's responses.

By Decision No. LET-AT-R-5-2002 dated January 8, 2002, the Agency determined that some interrogatories were irrelevant. The Agency also found that some of VIA's responses were inadequate or incomplete and, as such, required VIA to answer certain of the questions posed by CCD. VIA was also required to provide additional information requested by the Agency.

In its Decision No. LET-AT-R-6-2002 dated January 8, 2002, the Agency ruled on CCD's request of November 1, 2001 for production of the ALSTOM and Bombardier contracts. The Agency denied CCD's request and advised the parties that the contracts were not, at that point in time, relevant to the issue of an undue obstacle determination pursuant to subsection 172(1) of the CTA.

On January 10, 2002, CCD requested the Agency to direct VIA to respond to supplementary interrogatories. On January 14, 2002, VIA responded to the Agency's direction to answer certain questions set out in Decision No. LET-AT-R-5-2002.

In its Decision No. LET-AT-R-11-2002 dated January 16, 2002, the Agency ruled that the supplementary interrogatories submitted by CCD were not relevant, at that time, to the Agency's investigation. In addition, the Agency set out the procedures and time frames for the filing of final submissions by the parties including any expert evidence in this case. The Agency also ruled on VIA's request to present oral argument on CCD's application. The Agency stated that, due to the unique nature of the application, combined with the numerous submissions made by the parties in this case, it was of the opinion that it would be beneficial to add an oral component to its deliberations.

On February 1, 2002, by Decision No. LET-AT-R-36-2002, the Agency determined that additional information was required to be filed by VIA. VIA filed the additional information with the Agency on February 26, 2002.

By Decision No. LET-AT-R-63-2002 dated March 1, 2002, the Agency directed VIA to file additional information, including information regarding the feasibility and cost of making certain modifications to the Renaissance Cars. Furthermore, the Agency announced its intention to hear final oral argument on April 8, 2002.

By Decision No. LET-AT-R-78-2002 dated March 13, 2002, the Agency further directed VIA and CCD to file additional information.

On April 8, 2002, final oral argument was heard in Toronto, Ontario.

On June 25, 2002, VIA submitted a copy of a press release of that date, announcing that VIA began operating Renaissance trains on the overnight service between Montréal and Toronto on June 23, 2002.

By Decision No. LET-AT-R-200-2002 dated July 22, 2002, the Agency directed VIA to confirm the accuracy of certain measurements in the washroom of the "accessible suite". VIA indicated that the measurements were inaccurate, following which the Agency issued Decision No. LET-AT-R-219-2002 dated August 2, 2002 wherein VIA was required to clarify some of the information it provided and to indicate whether there have been any changes to the measurements set out in the first Inspection Report of VIA's Renaissance Cars.

In response, VIA identified changes to three areas of the Renaissance Cars and stated that it is not possible in the time available to remeasure every measurement in the renovated completed cars and make a detailed comparison to all the measurements set out in the first Inspection Report.

By Decision No. LET-AT-R-232-2002 dated August 14, 2002, the Agency concluded that another inspection of the Renaissance Cars by Agency staff, in the presence of engineers representing VIA and CCD, was necessary to confirm changes made by VIA to the dimensions of some accessibility features of the cars since the first Inspection Report. VIA submitted that it re-measured the cars and, save as previously advised, there were no differences between the first Inspection Report and the cars as they presently exist.

CCD filed another request for an interim injunction and an interim award of costs of the proceeding to date, as well as a request that the Agency order VIA to pay for CCD's engineer's fees and expenses to attend the second inspection of the cars, report to CCD and prepare comments on the Agency's revised final inspection report.

By Decision No. LET-AT-R-235-2002 dated August 20, 2002, the Agency concluded that CCD had still not met the test for an interim injunction and dismissed CCD's application for an interim order.

In response to Decision No. LET-AT-R-236-2002 dated August 21, 2002, VIA and CCD made submissions with respect to CCD's request for costs.

By Decision No. LET-AT-R-250-2002 dated August 29, 2002, the Agency denied CCD's request for an interim order for costs in the proceeding to date and advised that it would entertain submissions as to costs, if deemed appropriate, once a final decision is issued on CCD's application. However, the Agency granted CCD's request for an order for costs with respect to the second inspection and ordered VIA to pay the fees and expenses of CCD's engineer in this regard.

Pursuant to Decision No. LET-AT-R-262-2002 dated September 12, 2002, the Agency conducted another inspection of the Renaissance Cars in Montréal on September 16, 2002, along with representatives from CCD and VIA. The cars that were inspected were part of a Renaissance train consist that had been put into operation on VIA's Montréal-Toronto overnight service. By Decision No. LET-AT-R-300-2002 dated October 11, 2002, the Agency issued a second draft inspection report which highlighted new measurements and identified changes to accessibility features in the Renaissance Cars since the issuance of the earlier inspection report. The following material was attached to this draft report:

sketch of the service car "accessible suite", the coach car wheelchair tie-down space, and the area between the suite and wheelchair tie-down;
the chart filed by VIA entitled Renaissance Car Requirements by Type and by Train Service; and
diagrams of the Renaissance train consists that identify some of the accessibility features contained therein.

CCD and VIA filed comments on the accuracy of the second draft inspection report and responded to the opportunity provided to the parties in Decision No. LET-AT-R-300-2002 dated October 11, 2002 to file any change in previously filed positions. In light of the variation in the measurements noted by the parties with respect to certain features of the Renaissance Cars, the Agency determined in Decision No. LET-AT-R-339-2002 dated November 22, 2002 that it would again view the cars, in the presence of a VIA representative, to address the inconsistent measurements.

The third inspection took place on November 26, 2002, and by Decision No. LET-AT-R-358-2002, the parties were advised that the inspection report was finalized and placed on file as part of the official record.

Top of Page

FRAMEWORK OF THE DECISION

1. The legislative framework

The Agency's legislative mandate with respect to persons with disabilities is found in Part V of the CTA, which contains a regulation-making authority (subsection 170(1)) and a complaint adjudication authority (subsection 172(1)), both for the express purpose of removing undue obstacles to the mobility of persons with disabilities from the federal transportation network. The two provisions are linked in that the regulation-making authority provides a partial list of subject matters which is adopted in the complaint adjudication authority.

Subsection 170(1) of the CTA states that:

The Agency may make regulations for the purpose of eliminating undue obstacles in the transportation network under the legislative authority of Parliament to the mobility of persons with disabilities, including regulations respecting

(a) the design, construction or modification of, and the posting of signs on, in or around, means of transportation and related facilities and premises, including equipment used in them;

(b) the training of personnel employed at or in those facilities or premises or by carriers;

(c) tariffs, rates, fares, charges and terms and conditions of carriage applicable in respect of the transportation of persons with disabilities or incidental services; and

(d) the communication of information to persons with disabilities.

Subsection 172(1) of the CTA states that:

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.

Subsection 172(3) of the CTA sets out the authority to order, among other matters, corrective measures upon the finding of an undue obstacle:

On determining that there is an undue obstacle to the mobility of persons with disabilities, the Agency may require the taking of appropriate corrective measures or direct that compensation be paid for any expense incurred by a person with a disability arising out of the undue obstacle, or both.

Canada's national transportation policy, found in section 5 of the CTA, makes it clear that one objective of the legislation is to ensure that the federal transportation network is accessible, without undue obstacles, to persons with disabilities:

5. It is hereby declared that a safe, economic, efficient and adequate network of viable and effective transportation services accessible to persons with disabilities and that makes the best use of all available modes of transportation at the lowest total cost is essential to serve the transportation needs of shippers and travellers, including persons with disabilities, and to maintain the economic well-being and growth of Canada and its regions and that those objectives are most likely to be achieved when all carriers are able to compete, both within and among the various modes of transportation, under conditions ensuring that, having due regard to national policy, to the advantages of harmonized federal and provincial regulatory approaches and to legal and constitutional requirements,...

(g) each carrier or mode of transportation, as far as is practicable, carries traffic to or from any point in Canada under fares, rates and conditions that do not constitute...

(ii) an undue obstacle to the mobility of persons, including persons with disabilities,...

and this Act is enacted in accordance with and for the attainment of those objectives to the extent that they fall within the purview of subject matters under the legislative authority of Parliament relating to transportation. [Emphasis added]

The Courts have had an opportunity to consider the accessible transportation provisions in the appeal by VIA of a decision and order dated November 28, 1995 in the case of Jean Lemonde issued by the National Transportation Agency, one of the predecessors of the Agency (hereinafter the Lemonde case) (VIA Rail Canada Inc. v. National Transportation Agency, (C.A.) [2001] 2 F.C. 25). This appeal was heard by the Federal Court of Appeal on September 25, 2000 and the judgment of the Court dated October 10, 2000 will be referred to in this Decision where appropriate.

Top of Page

2. Part V of the CTA as human rights legislation and the application of the Canadian Charter of Rights and Freedoms, R.S.C., 1985, Appendix II, No. 44 Schedule B.

a) Human rights legislation

In Decision No. 646-AT-A-2001 dated December 12, 2001 (In the matter of the jurisdictional question, arising in the context of an application received by the Agency from Linda McKay-Panos against Air Canada, on whether obesity is a disability for the purpose of Part V of the CTA.) the Agency had an opportunity to consider submissions that Part V of the CTA is, by its nature, human rights legislation. In that decision, the Agency analyzed the issue in the following manner:

The historical context of the enactment of these provisions provides additional indication of the purpose to be achieved. In February 1981, the House of Commons Special Committee on the Disabled and the Handicapped tabled a report entitled "Obstacles" that included conclusions as to how obstacles encountered by persons with disabilities negatively affected their life and their participation in society. When dealing with transportation, "Obstacles" recommended a series of actions aimed at removing obstacles encountered by persons with disabilities when travelling. These recommendations led to the inclusion of the provisions that are now, with modifications, found in Part V of the CTA.

On June 17, 1988, the Minister of State (Transport), stated the following in the House of Commons debates regarding the enactment of the accessible transportation provisions in the National Transportation Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.) (the predecessor to the CTA):

It is truly a pleasure to rise in the House today and introduce for second reading a Bill which provides the means for ensuring that Canadians with disabilities are provided fair and dignified access to our national transportation system ... Accessible transportation is key to providing persons with disabilities the opportunity for full integration into the mainstream of Canadian life ... The laws of a country are a reflection of the values of its people. I invite Hon. Members today to join with the Government in this co-operative effort so that this legislation can be placed alongside the other laws of Canada that reflect its tradition for protecting human rights and values in Canada. [Emphasis added]

Finally, the Agency notes that section 171 of the CTA requires the Agency and the Canadian Human Rights Commission to "... coordinate their activities in relation to the transportation of persons with disabilities in order to foster complementary policies and practices and to avoid jurisdictional conflicts.".

As a result of the above, the Agency concludes that Part V of the CTA is, by its nature, human rights legislation aimed at removing undue obstacles to the mobility of persons with disabilities in Canada's transportation system.

The Agency continues to support this approach to the interpretation of Part V of the CTA.

b) Charter values

In its analysis of the Agency's legislative authority, CCD refers to the Canadian Charter of Rights and Freedoms (hereinafter the Charter). CCD submits that the Agency's authority pursuant to sections 170 and 172 of the CTA is comparable to that of the Canadian Human Rights Commission or Tribunal. Referring to the public interest mandate of the Railway Transport Committee of the Canadian Transport Commission (hereinafter the CTC), an Agency predecessor, CCD submits that the CTC recognized that it was required to exercise its jurisdiction in a manner consistent with Charter values. CCD further submits that the obligation to continue the process begun by the CTC received express recognition in the CTA. CCD refers to Charter cases and submits that the Agency should have due regard to the Charter and exercise its jurisdiction in a manner consistent with Charter values.

CCD argues that Parliament's selection of the word "undue" as the limiting phrase in subsection 170(1) of the CTA was clearly intended to parallel the concept of "undue hardship" found in the case law. CCD argues that this close connection between the Agency's undue obstacle jurisdiction and the human rights and Charter concept of "undue hardship" was clearly identified in the Lemonde case. Therefore, CCD submits that the Agency is to reach a decision only after it articulates both all relevant obstacles and all relevant justifications for a finding that the obstacles are "due".

VIA is of the opinion that Parliament has created two fundamentally different regimes, with different underlying philosophies, with respect to human rights/Charter issues and with respect to national transportation issues. VIA submits that, in determining both the "undueness" of the obstacle and the "practicability" of any countervailing measures, the Agency must have regard to the other values embodied in the national transportation policy and, specifically, the maintenance of an "economic, efficient and adequate network of viable and effective transportation services". VIA asserts that this balancing exercise stands in sharp contrast to the almost absolute equality protections embodied in human rights legislation and in section 15 of the Charter.

VIA draws two distinctions between the human rights/Charter approach and the approach mandated by the CTA. First, VIA submits that in the human rights context, the right to equal treatment is broadly framed subject only to narrowly defined exceptions. In contrast, in the national transportation system, VIA submits that Parliament has mandated that the public interest in equal access not eclipse considerations of cost, viability and efficiency. Consequently, in VIA's opinion, equality of treatment under the CTA is required only "as far as is practicable".

Second, VIA submits that in the human rights context, discrimination is essentially presumed where facilities do not provide for equal access to persons with physical disabilities. In such cases, VIA argues, the operator of such facilities comes under an obligation to make "reasonable accommodation" and if it is alleged that such accommodation has not been made, the onus of proof is on such operator to establish that accommodating measures were not possible because they would impose "undue hardship". VIA submits, however, that under the CTA, the complainant bears the burden of establishing that the obstacle, not the hardship in removing any obstacle, is undue and that there is no presumption that "reasonable accommodation" must be made to facilitate equal treatment.

The Agency recognizes that, as a government body exercising discretion under a legislative mandate, it is subject to the Charter. In this way, the Agency accepts that it must interpret and execute its mandate in a manner that is consistent with the Charter and the values espoused therein. The purpose of Part V of the CTA is to ensure that persons with disabilities, a recognized minority group, are not discriminated against within the federal transportation network. In this way, the Agency notes that, not only is the legislation consistent with the Charter, it also has a similar purpose, that being the amelioration of discrimination albeit in a much more limited context; i.e., the removal of undue obstacles to the mobility of persons with disabilities from the federal transportation network.

As discussed above, it is in recognition of this that the Agency has adopted the direction from the Supreme Court of Canada regarding the principles of interpretation to be applied to human rights legislation. Furthermore, the Agency is aware of the direction from the Supreme Court of Canada regarding the need to focus on the purpose of the legislation and not on the differences in the words used (Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City): Québec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City) [2000] 1 S.C.R. 665) and CCD's argument regarding its applicability to the Agency's interpretation of 'undue obstacle'. Furthermore, the Agency understands CCD's argument that the Agency should adopt the standard provided by the courts in the undue hardship cases for the interpretation of the justification provisions in the Charter and the various human rights codes. However, having said this, the Agency must exercise its legislative mandate in a manner that is consistent with the national transportation policy set out in section 5 of the CTA.

Unlike other bodies responsible for the administration of the Charter and the various human rights codes whose mandates are exclusively human rights in nature, the Agency is the economic regulator of the federal transportation network and in this way the national transportation policy is directed at the economic and other commercial principles to be applied by the Agency in its execution of this mandate. The Agency also has a human rights mandate found in Part V of the legislation and the national transportation policy reflects the importance of having a federal transportation network that is accessible to persons with disabilities. However, in its elucidation of that mandate, Parliament specifically inserted the notion of practicability in the policy and has directed the Agency to consider whether the needs of persons with disabilities have been accommodated as far as is practicable.

The Agency notes that the notion of practicability has been specifically rejected by the courts in their assessment of the appropriate standard to be adopted by human rights bodies and courts in favour of the use of a standard closer to impossibility. In this way, and in that context, human rights bodies and courts have been directed to require something much more than evidence of the impracticability of accommodating measures before they will find that the failure to accommodate is justified. The Agency is of the opinion, however, that it cannot adopt this higher standard and reject practicability arguments in the face of the specific direction to consider practicability provided by Parliament in the national transportation policy. The fact that the efficiency and viability of the federal transportation network are important guiding factors for the Agency necessitates the need to consider the practicability of accommodating persons with disabilities in its analysis of the undueness of obstacles found in the network.

While the Agency recognizes that the national transportation policy is not a source of substantive jurisdiction for the Agency in the exercise of its mandate, it does provide an important framework for the execution of this task. Accordingly, the Agency is of the opinion that the interpretation that the Agency places on the various substantive legislative provisions should be consistent with the policy framework provided.

Furthermore, the Agency specifically rejects VIA's argument that, under the CTA, the complainant bears the entire burden of establishing that an obstacle is undue. With respect to the burden, the Agency looks both to factors important to the community of persons with disabilities and to factors important to the transportation service provider in its weighing of the undueness of obstacles. The Agency considers that factors pertaining to carriers must be put on the record by them because they relate to their specific interest and as a result, they are uniquely positioned to identify and explain those factors. For example, if the Agency were to accept VIA's position that the evidentiary burden falls, in its entirety, on the community of persons with disabilities, then an unreasonable and, in some cases, impossible burden would be placed on applicants to produce evidence that largely falls outside of their control to establish why an obstacle is undue. In this way, transportation service providers would be able to thwart the execution of the Agency's mandate under Part V of the CTA by simply not providing the evidence about the transportation industry that is relevant to the undueness balancing.

c) Segregation and subsection 15(1) of the Charter

CCD has advanced the argument that VIA's proposed accommodation of persons with disabilities with the "accessible suite" on the Renaissance trains segregates persons with disabilities from other passengers and is stigmatizing. CCD asserts that this violates the guarantee of equality found in section 15 of the Charter.

The Agency recognizes the fundamental importance of integration to persons with disabilities and the fact that this is an underlying principle to what is now Part V of the CTA. For example and, as previously set out in the "Human rights legislation" section above, at the time that the accessible transportation provisions were first introduced in Parliament, the Minister of State (Transport) specifically recognized that accessible transportation "is key to providing persons with disabilities the opportunity for full integration into the mainstream of Canadian life."

As discussed in more detail in the "Principles of accessibility" section which follows, the underlying principle of Part V of the CTA is the fundamental right of persons with disabilities to have equal access as far as is practicable to the federal transportation network; the same access that persons who do not have disabilities enjoy. The Agency recognizes that persons with disabilities have the same needs as all people with respect to travel, whether it be for business, pleasure or medical reasons and that persons with disabilities want to have the same travel options as are presented to all people.

However, it is important to note that the Agency's mandate is to eliminate undue obstacles and the principles of equal access must be viewed in this context.

In some cases, transportation service providers accommodate persons with disabilities by providing segregated services for them. Services of this nature typically reduce a person's travel options, although this is not always the case, and are viewed by persons with disabilities as violating their right to equal access.

The Agency is of the opinion that segregation is not, in and of itself, an undue obstacle. Rather, in its determination of the existence of an obstacle and the weighing of whether that obstacle is undue, the Agency takes into consideration any segregation of persons with disabilities which may exist in the accommodation provided to them by transportation service providers. The Agency is of the opinion that it does not need to look beyond its own legislative mandate and to utilize section 15 of the Charter to do so.

Top of Page

3. Principles of accessibility

In executing its mandate under the accessible transportation provisions, the Agency, as well as one of its predecessors, the National Transportation Agency, has recognized and considered a number of long-standing principles of accessibility. While these principles are reflected, either explicitly or implicitly, in its past decisions, the Agency finds it important to set out some of these general principles of accessibility in order to permit a better understanding of the obstacle findings which will follow in this Decision.

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 is critical to the ability of persons with disabilities to exercise that right. Furthermore, the principle of the right to equal access to transportation reflects a recognition that persons with disabilities have the same needs to travel as others - for business, for pleasure, for medical reasons, and the like - and want to have the same travel options that are provided to others, such as those respecting mode of transportation, departure times, cost, and the ability to travel with friends, family or colleagues.

Ideally, all modes of transportation would be fully accessible to all persons with disabilities and equal access would be a reality for all. However, this is not the case. It is intuitively obvious that, as in the rest of society, there are barriers or obstacles to participation inherent in the transportation network that will act to prevent or make access to that network difficult for some people.

Insofar as transportation service providers are aware of the needs of persons with disabilities and are prepared to accommodate those needs, it can be said that persons with disabilities may have equivalent access to the network. Implicit in the use of the term "equivalent access" is the notion that, in order to provide equal access to persons with disabilities, transportation service providers may have to provide different access - more or different services, different facilities or features, all designed to meet the needs of persons with disabilities to ensure that they, too, can access the network.

Fundamental to the concept of accessibility is the notion of independence. Persons with disabilities want as much independence in life as possible and their use of transportation services is no exception; equivalent access to the transportation network involves the ability of persons with disabilities to move through the network with as much independence as possible.

The implications of not having independent access are significant in that persons with disabilities will have to be dependent on others to assist them in their travel, whether it be transportation industry workers or, in some cases, their own attendants. In addition, there are a variety of problems that can be associated with assisted access, including human error, inconvenience, delays, affronts to human dignity and pride, cost, uncertainty, and no sense of confidence or security in one's ability to move through the network.

The Agency is of the opinion that one important aspect of the principle of independence is the recognition of the importance of a person's own mobility aid to his or her independence, dignity, safety and comfort. For example, in the context of this application, rail cars have provided an important opportunity within the transportation network for a person to be able to choose to remain in his/her own wheelchair and the Agency is of the opinion that it is important to preserve this aspect of rail travel wherever possible. An onboard wheelchair should only be provided as an option to those who can and wish to use it; it is not a substitute for a person's own wheelchair.

Where there are features and amenities specifically designed to meet the needs of persons with disabilities who wish to remain in their own wheelchairs, it is essential that they provide adequate dimensions and appropriate designs so as to not lessen the level of independence of persons with disabilities. Specifically, wherever possible, the features or amenities should not require persons with disabilities to depend on assistance from another person for access.

A related principle is that of safe and easy access. In this regard, where there are features specifically designed to meet the needs of persons with disabilities who wish to remain in their own wheelchairs, it is essential that persons with disabilities have safe and easy access to those features. In this way, for example, there should be sufficient space to permit a person using their wheelchair to manoeuvre safely and easily through a doorway or within an accessible area to use the facilities contained therein.

Another important concept is that of reasonable accommodation which, in the context of the Agency's mandate, refers to the responsibility of the transportation service provider to meet the needs of persons with disabilities "as far as is practicable". In this regard, the Agency's mandate under Part V of the CTA is to eliminate undue obstacles to the mobility of persons with disabilities from the federal transportation network and where a transportation service provider can justify providing something less than equivalent access, then it can be said that it has provided a reasonable accommodation and the Agency would not find an undue obstacle in the accommodation. However, if the Agency finds that the accommodation provided is not reasonable or falls short of what is practicable in the circumstances, then the Agency may find an undue obstacle and may require the taking of corrective measures to eliminate that undue obstacle.

Top of Page

4. The Code of Practice - Passenger Rail Car Accessibility and Terms and Conditions of Carriage by Rail of Persons with Disabilities (Rail Code)

The Rail Code

The stated purpose of the Rail Code, which was published by the Agency in 1998, is to improve the accessibility of rail travel to persons with disabilities through the development and administration of accessibility standards covering the federal passenger rail network. In this regard, it should be noted that the Rail Code sets out minimum standards that the Agency expects rail carriers to meet.

The Rail Code, like the other codes of practice developed by the Agency to address accessibility issues concerning transportation by air and ferry, is voluntary and is not legally binding. However, the process by which it was developed indicates general approval in that it was developed in close consultation with the Agency's Accessibility Advisory Committee, which is comprised of, among others, representatives of organizations of and for persons with disabilities, rail car manufacturers, VIA and other rail carriers, and the Railway Association of Canada. The Agency is of the opinion that the Rail Code represents a serious commitment by rail carriers, including VIA, to abide by its terms. Through this consultative process, it is the Agency's understanding that rail carriers, including VIA, are seriously committed to abide by its terms. This expectation of compliance is clearly reflected in the Rail Code:

It is expected that this Part of the Code of Practice (i.e., that which addresses passenger rail car accessibility) will be followed by VIA Rail Canada Inc., Algoma Central Railway Inc., Quebec North Shore & Labrador Railway Company... and by any future rail carrier that the Agency requests to follow it.

Further, at a special ceremony for the release of the Rail Code at Toronto's Union Station in February 1998, Terry Ivany, then president and chief executive officer of VIA indicated, in his opening remarks, that:

We are committed to abiding by the standards set out by the Agency in its Code of Practice.

In fact, the Rail Code is the result of a consensus-building exercise, between the community of persons with disabilities and industry, and represents, in many ways, compromises to which rail carriers are expected to adhere.

The Rail Code addresses both the provision of services and the equipment used in rail transportation. Regarding the former, the Rail Code discusses services that should be provided so that passengers with disabilities may expect to travel by rail with a reliable and consistent level of service. Regarding the latter, the Rail Code discusses features to make passenger rail cars more accessible to persons with disabilities, such as lighting, location of wheelchair tie-downs, tactile seat markers, and signage.

The Rail Code sets out accessibility criteria that apply to all types of passenger rail cars. Additional criteria also apply to coach cars that have a wheelchair tie-down and to wheelchair-accessible sleeper cars. In light of the fact that the structural limitations of existing coach and sleeper cars may prevent them from being made accessible to a person in a Personal Wheelchair, even when they undergo a major refurbishment, the Code states that any newly manufactured coach and sleeper car which is specified by the Rail Code to be wheelchair-accessible, should be designed to be accessible to a person using a Personal Wheelchair.

The Rail Code offers practical, functional, operations-oriented solutions to problems faced by persons with disabilities who travel by rail while avoiding, where possible, rigid descriptions of exact procedures to be followed and precise measurements. This approach provides carriers with flexibility when addressing Code provisions.

For certain accessibility features referred to in the Rail Code, carriers are invited to refer to the Canadian Standards Association's Barrier-Free Design Standard and where appropriate to do so, to adopt the technical specifications contained in it.

The Rail Code also provides guidance to the community of persons with disabilities on several issues, including accessible features and services that persons with disabilities can expect to be provided by a rail carrier, the assignment of seats and rooms, and the procedures a rail carrier is expected to follow if it damages or loses a mobility aid.

The Agency regularly monitors, measures and evaluates the transportation industry's compliance with Agency regulations and codes of practice related to persons with disabilities. With respect to the Rail Code, it does so by conducting surveys and investigating complaints.

Application of the Rail Code

Throughout the proceedings, CCD and VIA have made reference to the Rail Code and the standards that it sets out.

CCD noted that currently no regulations exist governing the design, construction or modification of rail cars in Canada; instead, there is the Rail Code. CCD submitted that, while the Rail Code, unlike a regulation, is not binding, it nonetheless represents the Agency's opinion on how the accessibility requirements of persons with disabilities are to be balanced against the goal of a passenger rail service. CCD further submitted that the Rail Code is not a catalogue of "obstacles", which may or may not be "undue". It serves the useful purpose of putting VIA on notice of the kinds of obstacles that it should reasonably have been expected to remove when it considered purchasing new rolling stock.

While CCD expressed the opinion that the Rail Code is an important tool in determining undue obstacles, it submitted that the Rail Code does not purport to be comprehensive. CCD noted that the Rail Code presents minimum standards and that it urges rail carriers to both exceed these standards wherever feasible and consult with consumer groups when developing and testing new designs. Additionally, CCD submitted that the Rail Code is not legally binding on the Agency and simply constitutes a starting point for determining undue obstacles. CCD asserted:

Simply because the Code has failed to address an obstacle to the mobility of persons with disabilities does not mean that the obstacle is not undue. The Agency should not fetter its discretion by finding something is or is not an "undue obstacle" based exclusively on the Code. The Agency must consult other sources besides the Code in determining whether the obstacles posed by the Renaissance Trains to persons with disabilities are undue.

VIA noted that the Rail Code is voluntary and characterizes it as a helpful guideline but one that is not meant to set precise standards for all circumstances.

However, the Agency notes that VIA made reference to the standards set out in the Rail Code when referring to accessibility features of the Renaissance Cars and, in a number of submissions filed with the Agency, asserted that the Renaissance Cars substantially comply with the Rail Code and, in some cases exceed its requirements.

The Agency is of the opinion that, in conducting an investigation into a rail matter pursuant to subsection 172(1) of the CTA, it is appropriate to refer to the Rail Code and the standards that it sets out, in that the Rail Code provides a frame of reference for the Agency's review of a complaint. In particular, when considering the design of a rail car, the standards set out in the Rail Code served as a useful reference point.

However, in recognizing the fact that the Rail Code is voluntary, the Agency does not rely exclusively on it for making an undue obstacle finding. Furthermore, while compliance with regulations would preclude the Agency from making an undue obstacle finding on the same matter pursuant to subsection 172(2) of the CTA, the Agency is not bound by the provisions of the Rail Code in the same way. And insofar as the Rail Code is intended to provide consensual minimum standards, the Agency continues to be able to examine individual applications to determine whether the application of those minimum standards represents an appropriate level of accessibility in the circumstances of each case. In this regard, the Agency has, as part of its investigation, required the filing of extensive information from the parties and reference to the Rail Code is made keeping in mind the particular circumstances of the application before the Agency.

Although, as both VIA and CCD have submitted, the Code is voluntary, it does set out the expectation that newly manufactured equipment in service on or after April 1, 2001 or existing cars undergoing a major refurbishment to be used on or after this date, will have certain accessibility features except where structural limitations prevent rail carriers such as VIA from incorporating them in existing cars. This expectation was discussed in Decision No. 641-AT-R-1998 dated December 29, 1998 (Application by Yvonne Gaudet, on behalf of Marcella Arsenault, pursuant to subsections 172(1) and (3) of the CTA, regarding the accommodations and level of service provided by VIA Rail Canada Inc. to Ms. Arsenault during her return trip from Moncton, New Brunswick, to Oakville, Ontario.), regarding an application with respect to the accessibility of VIA's existing sleeper cars to a person who wished to remain in her own wheelchair. In that Decision, the Agency states, in part, that:

Moreover, the Agency notes that VIA has committed to improve the accessibility of its passenger rail cars in compliance with the Agency's Code of Practice....any newly manufactured sleeping car ordered, purchased or leased by a rail carrier to be used on or after April 1, 2001, or any existing sleeping car undergoing a major refurbishment to be used on or after that same date, should satisfy the established accessibility criteria.

In summary, the Rail Code was not developed in isolation by the Agency; rather, it was the product of consultations with both the rail industry and the community of persons with disabilities. As such, although the Rail Code is voluntary, it is an important reference tool which sets out clearly defined expectations regarding accessibility standards to be met by rail carriers such as VIA.

Top of Page

5. Canadian Standards Association's CAN/CSA-B651-95 Barrier-Free Design Standard

CSA Barrier-Free Design Standard

The Canadian Standards Association's (CSA) CAN/CSA-B651-95 Barrier-Free Design Standard (hereinafter the CSA Barrier-Free Design Standard) - which was first published in 1990, contains requirements for making buildings and other facilities accessible to persons with various physical and sensory disabilities. The CSA Barrier-Free Design Standard states that it was developed to fulfill an expressed need for a national, technical standard covering a broad range of building and environmental facilities and can be referenced in whole or in part by a variety of adopting authorities.

As stated in the CSA Barrier-Free Design Standard, the CSA is a non-profit, non-statutory, voluntary membership association engaged in the development of standards and certification activities. The CSA was accredited by the Standards Council of Canada to the National Standards system in 1973. CSA standards reflect a national consensus of producers and users, including consumers, retailers, unions, governmental agencies, and manufacturers. The standards are used by industry and have been adopted by all levels of government in their regulations, particularly in the fields of health, safety, building and construction, and the environment. Approximately one-third of the CSA standards have been referenced into law by provincial and federal authorities.

The requirements contained in the CSA Barrier-Free Design Standard are minimum standards and result from a consensus of members of the CSA Technical Committee on Barrier-Free Design. It has been approved as a National Standard of Canada by the Standards Council of Canada; however, it does not have the force of law unless mandated by legislation or called up in the regulations of the authority having jurisdiction.

Application of the CSA Barrier-Free Design Standard

VIA asserted that the CSA Barrier-Free Design Standard and the CSA are irrelevant to the Agency's decision in the present matter and that the Rail Code recognizes that the standard was developed for buildings where "more real estate is available". VIA stated that, although the standards are mentioned in the Rail Code, they are qualified by the words "carriers are invited to refer ..., where it is appropriate to do so ..." VIA submitted that the Rail Code is voluntary and although a helpful guideline, it is not meant to set precise standards for all circumstances. Finally, VIA further submitted that, in any event, the Renaissance Cars meet and exceed the standards set out in the Code in virtually all areas.

Contrary to VIA, CCD argued in favour of reference to the CSA Barrier-Free Design Standard. CCD submitted that because many of the standards found in the Rail Code are functional rather than prescriptive, the CSA specifications are often the primary source of guidance on the obstacles the carrier is responsible for eliminating. CCD expressed the view that some interpretation is still required as the Code invites rail carriers to adopt the technical specifications contained in the CSA Barrier-Free Design Standard "where appropriate to do so". In this regard, CCD submitted that it is a matter for the Agency to determine "appropriateness".

CCD submitted that just because VIA asserts that the CSA Barrier-Free Design Standard is irrelevant, it does not follow that its specifications are inappropriate. CCD asserted that if standards "...are to be diminished or exceeded, it is reasonable to expect that the party arguing should shoulder a heavy burden of proof. To do otherwise undermines the purposes justifying the establishment of the standard in the first place".

CCD asserted that, without the CSA Barrier-Free Design Standard, there would be no concept of the "footprint" of the Personal Wheelchair, which is, in CCD's opinion, the critical design feature provided by the Agency in the Rail Code. CCD further submitted that there would be no identification of a turning diameter and no definitions for wheelchair tie-down and "wheelchair-accessible".

CCD commented that, like the Rail Code, the CSA Barrier-Free Design Standard represents the kind of balancing required by the Federal Court of Appeal as set out in the Lemonde case. CCD noted that the standard was developed based on data on wheelchairs in use in the 1970's and comments that, "It isn't a matter of taking the standard and negotiating down, the balancing has already occurred."

The Agency is of the opinion that, as already recognized in the Rail Code, although the CSA Barrier-Free Design Standard was developed as a standard for buildings and other facilities, the standard contains many criteria that are equally applicable to accessibility features on passenger rail cars. In fact, not only does the Rail Code refer carriers to the CSA Barrier-Free Design Standard, it also directly incorporates certain CSA standards in that more than half of the accessibility features specified in Appendix A of the Rail Code refer to the CSA Barrier-Free Design Standard. For example, the definition for Personal Wheelchair in the Rail Code uses the dimensions and turning diameter for a typical wheelchair and its occupant as set out in the CSA Barrier-Free Design Standard. The Agency also notes that the Transport Canada's Passenger Car Safety Rules (Railway Passenger Car Inspection and Safety Rules (TC 0-26) [RAC-R-97-06-25 (R.23) June 28, 2001]) incorporate this same definition for rail transportation.

The Agency notes that the Rail Code recognizes the applicability, where appropriate, of the CSA Barrier-Free Design Standard and clearly contemplates rail carriers looking to it for guidance on what dimensions and technical aspects of rail cars will ensure access for persons with disabilities, including those who use wheelchairs. In this regard, the Agency recognizes the value of the CSA Barrier-Free Design Standard and is of the opinion that it provides a reasonable indicator of what dimensions and features will assist in ensuring accessible rail services for most persons with disabilities. This being said, the Agency is aware that the appropriateness of referring to the CSA Barrier-Free Design Standard is dependent on many factors, including the structural limitations of rail cars.

In summary, the Agency is of the opinion that an obvious starting point for considering an application pursuant to subsection 172(1) of the CTA that requires a consideration of design features of a rail car, is the Rail Code and the CSA Barrier-Free Design Standard. The Agency is of the opinion that it is reasonable for the Agency to refer, where appropriate, to the technical information in the CSA Barrier-Free Design Standard which sets out the dimensions required for the accessibility of features such as door widths and wheelchair tie-downs. While the Agency recognizes that these standards will not necessarily accommodate all persons with disabilities, they do reflect a reasonable compromise. However, the Agency acknowledges that consideration must be given to the fact that the specifications set out in the CSA Barrier-Free Design Standard were developed for buildings and facilities and that adjustments might need to be made in the context of a rail car. This, of course, is consistent with the Rail Code which states that, where it is appropriate to do so, the technical specifications of the CSA Barrier-Free Design Standard be adopted. In considering whether it is appropriate to require VIA to apply such specifications, the Agency will consider the submissions made by the parties.

Top of Page

6. Personal Wheelchair as a standard to assess accessibility

The Agency notes that CCD's application with respect to the accessibility of the Renaissance Cars is made largely in the context of the obstacles that features of the cars pose for persons with disabilities who use wheelchairs. As the Agency, in this particular case, is considering the issue of undue obstacles in the context of the design and certain features of rail cars, it is necessary to examine the particular features that CCD has identified as obstacles to persons who use wheelchairs by reference to a wheelchair standard or a typical wheelchair. Throughout the Rail Code, many accessibility standards are set out in relation to the accommodation of a Personal Wheelchair, which is a term derived from the CSA Barrier-Free Design Standard, which provides that the minimum clear floor area required to accommodate a single, stationary, typical wheelchair and occupant is 75 cm x 120 cm (29.53" x 47.24"). This standard is representative of a typical wheelchair and is a standard that is well established for the consideration of accessibility issues. In fact, the Rail Code provides that new equipment being brought into service to replace or augment existing cars is expected to reflect this standard of Personal Wheelchair accessibility.

This being said, the Agency recognizes the importance of onboard wheelchairs as a means of providing access to spaces which might otherwise not be accessible to persons using their own wheelchairs. For example, onboard wheelchairs are essential to persons who use wheelchairs who wish to travel by air. This is reflected in the Agency's Code of Practice - Aircraft Accessibility for Persons with Disabilities, which, in recognition of the obvious physical constraints and inherent structural limitations of aircraft, sets out accessibility criteria in terms of onboard wheelchairs and not in terms of Personal Wheelchairs.

However, there are not the same inherent space restrictions in rail cars as in aircraft. This fact is reflected in the provisions of the Rail Code which specify criteria for many wheelchair-accessible areas in terms of features designed to ensure access to persons using Personal Wheelchairs. The Rail Code further provides that, at the very least, and only if structural limitations of existing cars make accessibility to persons using Personal Wheelchairs not possible, areas which are to be wheelchair-accessible should be accessible to persons using onboard wheelchairs.

The appropriateness of the Personal Wheelchair standard as a means of addressing the accessibility issues raised in this case is illustrated by reference to CCD's submission that, regarding the types of wheelchairs in use in Canada, there is no Canada-wide data currently available on the proportions of wheelchairs in use that are broken down according to dimensions. CCD further advises that the dimensions of wheelchairs and scooters in use today are extremely variable and depend on the type of device, the manufacturer and the needs of the individual.

CCD has submitted evidence as to the varying dimensions of wheelchairs, both manual and electric, and has submitted that the definition of Personal Wheelchair, which is based on information gathered in the 1970's about manual wheelchairs, is no longer reflective of modern wheelchair types and sizes. The Agency notes CCD's submission that the Personal Wheelchair standard in the CSA is a compromise that is now outdated. However, the Agency is of the opinion that it was not provided with compelling evidence to support the adoption of a different standard and thus continues to be of the opinion that the Personal Wheelchair standard contained in the CSA is the most appropriate standard for the Agency to use in the context of CCD's application.

It should be noted that the Agency has previously used the CSA wheelchair standard in the context of an application addressing, among other matters, whether an "ordinary" wheelchair should be accommodated in the aisles of aircraft passenger cabins and aircraft washrooms (Decision No. 515-A-1997 dated August 19, 1997 - J.A. Lawrence Caron against Canadian Airlines International Ltd. carrying on business as Canadian Airlines International or Canadi*n.).

As illustrated by the aforementioned case, even if the Agency were considering whether certain features of the Renaissance Cars constitute obstacles in the context of a complaint based on the actual travel experience of a person with a disability, the Agency would likely undertake the same type of analysis as it does when considering the design of a rail car, that is the examination of such issues as the dimensions of a wheelchair tie-down in relation to the standard of a Personal Wheelchair.

As discussed above, rail is a mode of transport that has permitted persons with disabilities to use their own wheelchair on board trains. In fact, there is a general expectation that over time accessibility will improve for persons with disabilities. This is an expectation which is also expressed in the Rail Code. In light of the above, the Agency is of the opinion that the appropriate standard to be applied in its determination of whether certain features of the Renaissance Cars present undue obstacles to the mobility of persons using wheelchairs, is the Personal Wheelchair as set out in the Rail Code.

Top of Page

PRELIMINARY ISSUES

1. Jurisdiction

Subsequent to CCD's filing of its application, VIA questioned the Agency's jurisdiction to consider the application pursuant to section 172 of the CTA and submitted that CCD's application was premature, mainly on the basis that the rail cars were not yet in service. The Agency provided the parties with an opportunity to file submissions regarding the Agency's jurisdiction and, after reviewing the submissions filed by the parties, in Decision No. LET-AT-R-80-2001 dated February 22, 2001 (the jurisdictional decision), the Agency concluded that it had jurisdiction to consider CCD's application.

The jurisdictional decision of the Agency was challenged by VIA in the Federal Court of Appeal by way of an application for leave to appeal. This application was dismissed by the Court on May 1, 2001 (File 01-A-13).(In the matter of sections 28 and 172 of the CTA and Decision Nos. LET-AT-R-80-2001 and LET-AT-R-82-2001 of the Agency, released February 22, 2001 between VIA (Moving Party) and the Agency and CCD.)

Since the issuance of that decision of the Court, VIA has raised many of the same issues addressed by the Agency in its jurisdictional decision, including the issue of prospectiveness. The Agency will not readdress issues that were previously determined by the Agency and that were subsequently the subject of an application for leave to appeal that was dismissed by the Federal Court of Appeal.

2. Evidentiary

VIA submitted that the Agency has neither the evidence nor the expertise to consider the factors listed by the Federal Court of Appeal in the Lemonde case. The Agency notes that while that case was considered under the previous legislation, the mandate remained largely unchanged with the introduction of Part V of the CTA in 1996.

Concerning evidence, VIA submitted, in final argument, that the Agency does not have the evidence that would allow it to review the entire rail system of Canada, the economic micro and macro decisions and how the system operates, and thus does not have the evidence to design corrective measures. VIA argued that no person has encountered an obstacle in trying to use the Renaissance Cars because they were not, at the time that CCD filed its application, in service, and thus, CCD's application does not bring forward a complaint of an actual alleged undue obstacle. In this regard, VIA submitted that there are no facts of when, where, why, what and how an alleged obstacle became an obstruction. VIA submitted that it is, therefore, impossible for the Agency to determine what corrective measures might be appropriate because it is impossible to fashion a remedy that is proportional to any alleged obstacle in VIA's network.

VIA submitted that, as of November 1, 2002, travellers' experiences with the Renaissance Cars, which are now in service on some routes, have been extremely positive. VIA further asserted that Canadians with disabilities have experienced a greater number of options in their travel planning and that wheelchairs have been successfully accommodated in the Renaissance Cars. VIA added that there have been no complaints from travellers with disabilities since the service began. As a result, VIA maintained that the theoretical complaints of CCD have been fully answered by actual experience and, in fact and in law, there is no evidence of an obstacle and therefore no evidence to support CCD's complaint. VIA stated that there is no basis for a finding of undue obstacle under sections 170 or 172 of the CTA and no basis for any remedy. According to VIA, the Agency should exercise any remaining discretion in favour of VIA.

It is VIA's view that an application of "common sense" logic to the operation of a practical railway company seeking to provide all Canadians with a reasonable and fair public transportation system would lead to the conclusion that VIA has not presented an undue obstacle to the travel of Canadians with disabilities as a result of introducing the Renaissance trains into service.

The Agency is of the opinion that if, as VIA asserted, the Agency does not have evidence that allows it to consider certain issues, then it is for VIA to provide the Agency with the information that it submits the Agency requires in order to make a determination. In this regard, the Lemonde case identifies a series of factors that may be taken into consideration by the Agency when assessing whether an obstacle is undue. The Agency is of the opinion that factors pertaining to carriers must be put on the record by them as they relate to their specific interest and because carriers are in the best position to identify and explain those factors.

Although VIA asserted that what it terms the "theoretical complaints of CCD" have been answered by the fact that there have been no complaints since the Renaissance Cars went into service, the Agency is of the opinion that the absence of a complaint filed with VIA or the Agency does not necessarily mean that there are no obstacles in the Renaissance Cars.

As the Agency has repeatedly stated throughout these proceedings, it is considering whether certain features of the Renaissance Cars constitute undue obstacles arising out of the design of the Renaissance Cars. Furthermore, in undertaking its investigation, the Agency has determined that it will use the Personal Wheelchair as defined in the Rail Code and the CSA as its reference point and thus the actual travel experience of a person with a disability is not the issue before the Agency. In addition, as already discussed, even if the Agency were investigating an actual travel experience, the Agency would likely consider the design of the feature alleged to be an obstacle in relation to a standard such as the Personal Wheelchair in order to ensure that if an undue obstacle were found that the remedy would address the needs of most persons with disabilities.

Concerning expertise, the Agency has the necessary expertise to deal with this complaint. The first accessible transportation matter was considered in 1980, prior to the enactment of specific accessible transportation provisions in the legislation, when the Railway Transport Committee of the Canadian Transport Commission (one of the Agency's predecessors) used a general legislative provision requiring railway tariffs to not be prejudicial to the public interest to consider the application of Clariss Kelly, a person with a disability who used a wheelchair.

The Agency and one of its predecessors, the NTA, have had a specific accessible transportation mandate since 1988 when amendments to introduce new accessible transportation provisions were made to the National Transportation Act, 1987, S.C., 1987, c. 34 (hereinafter NTA, 1987). It should be noted that while the legislation changed in 1996 from the NTA, 1987 to the CTA, the accessible transportation provisions remained virtually unchanged.

Since 1988, the Agency has had the specific legislative mandate to eliminate undue obstacles to the mobility of persons with disabilities from the federal transportation network in two ways: through the adjudication of complaints and the promulgation of regulations.

In the almost fifteen years since the introduction of the mandate, the Agency's complaint adjudication process has been frequently used by the community of persons with disabilities and, as a result, the Agency has had an opportunity to consider all manner of complaints regarding a very wide range of accessibility issues concerning virtually all of the different types of transportation service providers in the federal transportation network. Since the inception of the Agency's complaint adjudication process, there has also been a steady rise in the number of applications received. In the last five years, the Agency received an average of 57 applications each year regarding accessible transportation matters.

Specifically, the Agency has addressed complaints where, among others, issues pertaining to aisle widths and accessible washrooms have been examined. In terms of the balancing process, the Agency has examined economic considerations, carrier policies and transportation alternatives offered by the transportation provider.

The Agency has promulgated two sets of regulations: Part VII of the Air Transportation Regulations, SOR/88-58, as amended, being the Terms and Conditions of Carriage of Persons with Disabilities, and the Personnel Training for the Assistance of Persons with Disabilities Regulations, SOR/94-42 which have a multi-modal application to air, and federal rail and marine passenger transportation.

The Agency has developed three voluntary codes of practice for industry to improve the delivery of transportation services to persons with disabilities: the Code of Practice - Aircraft Accessibility for Persons with Disabilities; the Rail Code; and the Code of Practice - Ferry Accessibility for Persons with Disabilities.

These Codes of Practice represent a shift in approach from the imposition of standards by regulation to a voluntary, consensus-building process involving extensive consultation with the transportation industry, the community of persons with disabilities and other government bodies such as the Canadian Human Rights Commission (hereinafter CHRC) and the Department of Transport.

Parliament recognized the potential overlap in jurisdiction between the Agency and the CHRC in the legislation administered by the Agency by specifically requiring the two bodies to "coordinate their activities in relation to the transportation of disabled persons in order to foster complementary policies and practices and to avoid jurisdictional conflicts." As a result, complaints by persons with disabilities related to the federal transportation network are often referred by the CHRC to the Agency for investigation and determination before the CHRC completes its own process.

The Agency and the NTA have also conducted a number of inquiries into accessibility matters, including the accessibility of the extra-provincial motor coach industry, the accessibility of ground transportation from airports, the accessibility of federal ferry services, and a comprehensive review of barriers to communication to persons with cognitive and sensory disabilities travelling by air.

In conclusion, and as discussed above in Decision No. LET-AT-R-80-2001, the Agency has determined that it has the jurisdiction to consider CCD's application, and in that same decision, it has also determined that it has the jurisdiction, pursuant to subsection 172(3) of the CTA, to require, where appropriate, the taking of corrective measures by VIA:

If the Agency were to find that some features in the final design of a rail car that will be put into service constitute undue obstacles, the Agency may then require the implementation of corrective measures regarding the design, construction and modification of that equipment. As such, a corrective measure ordered by the Agency could relate to a certain feature which is included in the final design of a rail car and which must be removed or modified. This is in keeping with the Agency's mandate.

In fact, should it find an undue obstacle, the Agency does not necessarily have to issue a prospective order or deal with prospective facts. The Agency may simply find that a feature in the design of the train constitutes an undue obstacle and that corrective measures, such as modifications of that design, are appropriate.

3. Renaissance Cars - newly manufactured cars or existing cars

CCD submits that the Renaissance Cars are newly manufactured, while VIA submits that they are existing cars. The importance of this issue is related to the fact that the accessibility standards as set out in the Rail Code vary, depending upon whether the cars in question are, on the one hand, newly manufactured coach and sleeper cars or existing coach and sleeper cars that are undergoing a major refurbishment and that are to be put into service on or after April 1, 2001 or, on the other hand, existing cars.

CCD submits that in order to improve the accessibility of rail travel to persons with disabilities, which is the purpose of the Rail Code, it was necessary for the Rail Code to provide rail carriers some degree of flexibility with respect to the time period over which accessibility was to be achieved. CCD submits that the Rail Code recognizes the problem of retrofitting a carrier's existing cars while also recognizing the opportunities presented to carriers when they are acquiring new cars. In CCD's opinion, a key issue in determining whether certain obstacles posed by the Renaissance Cars are undue is whether the cars are "newly manufactured" or "existing". CCD submits that, in the present case, the Renaissance Cars have never been in commercial operation and their life expectancy has not been shortened by the wear and tear of commercial use. In addition, CCD notes that many of the cars are undergoing a fundamental redesign and a major refurbishment; such modifications include structural changes, changes to the electrical system and elimination of the office space for the customs officials. Thus, CCD argues that, even those cars that VIA states are "completed" are undergoing a major retrofitting, as they are still undergoing a fundamental redesign and major refurbishment. With respect to those cars that are essentially empty shells, CCD submits that these cars, the assembly of which has not even started, cannot be said to exist or to have been manufactured such that they should be considered to be newly manufactured cars.

VIA submits that the Renaissance Cars are existing cars which were purchased because they were immediately available.

In any event, there can be no doubt that the Renaissance Cars fall within this category of rail cars in the Rail Code as they are clearly undergoing a major refurbishment before being brought into service by VIA. Shells are being developed and completed, partially completed cars are being completed and substantially completed cars are being converted, refurbished and retrofitted before being used by VIA.

The Agency is of the opinion that it is evident that the Renaissance Cars are newly manufactured and, as such, the Rail Code accessibility standards applicable are those for newly manufactured cars. The fact that the cars were originally manufactured for another transportation provider does not take away from the fact that these are newly manufactured cars that were put into service for the first time by VIA after April 1, 2001.

While the Agency has determined the status of these cars under the Rail Code, it should be made clear that this Decision does not involve a simple application of the Rail Code provisions to the Renaissance Cars with a decision on whether they meet the Rail Code standards. In fact, while the Rail Code is a relevant factor in the Agency's consideration of this case, the task before the Agency is the determination of whether the Renaissance Cars pose undue obstacles to persons with disabilities. Furthermore, while a finding of compliance with applicable regulations would preclude the Agency from finding an undue obstacle pursuant to subsection 172(2) of the CTA, the Rail Code is not a regulation. Rather, as set out in the "Framework of the Decision" section of this Decision, the Rail Code is a voluntary guideline on minimum accessibility standard developed by consensus by industry and the community of persons with disabilities. In recognition of this, the Agency is not precluded from finding undue obstacles in the Renaissance Cars even if it finds apparent compliance with the Code.

Top of Page

DETERMINATION PURSUANT TO SECTION 172 OF THE CTA OF OBSTACLES AND WHETHER THEY ARE UNDUE

When making a determination pursuant to section 172 of the CTA, the Agency must first determine whether there is an obstacle and, if there is an obstacle, whether that obstacle is undue. The following summarizes what the Agency may consider when determining whether the design of the Renaissance Cars and its features constitute obstacles to the mobility of persons with disabilities and whether any of the obstacles are undue.

1. The determination of obstacles

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.

The Agency typically makes an obstacle determination in the context of whether or not a situation constituted an obstacle to the mobility of a person with a disability in a particular case. However, as previously discussed, given that CCD's application alleges obstacles to the mobility of persons with disabilities in the context of the design of the Renaissance Cars, the Agency's analysis of the alleged obstacles is based on the design and features of these rail cars. Specifically, the Agency's analysis focusses primarily on the design and features of the Renaissance Cars as they apply to the mobility of persons who use wheelchairs, given that the primary focus of CCD's application is whether the cars are accessible to persons who use wheelchairs.

2. The determination of the undueness of obstacles

The following sets out the arguments made by the parties regarding the notion of "undueness" and the factors that are relevant to the Agency's consideration of whether the obstacles alleged by CCD to exist in the Renaissance Cars are undue, together with the Agency's analysis of these arguments.

a) Undueness in general

VIA

VIA submits that, in considering the interpretation of the phrase "as far as is practicable" contained in the national transportation policy found in section 5 of the CTA, and the analysis of "undue obstacle" under subsection 172(1) of the CTA, the Agency must also consider and balance the interests of all passengers, the efficiency of rail transportation generally, the costs of operating VIA's passenger rail network and the economic viability of the railway company.

VIA further submits that in the Lemonde case, the Federal Court of Appeal stated that the determination of whether something is "undue" is a contextual one and that the words "so far as practicable" in section 3 of the NTA, 1987 (now "as far as is practicable" set out in section 5 of the CTA) and the use of the term "undue" require the Agency to undertake a balancing of interests such that satisfaction of one interest does not create disproportionate hardship affecting the other interests.

VIA states that, given both the aims and objectives of the CTA, together with the judicial guidance provided by the Federal Court of Appeal, the Agency's undueness analysis must examine the following:

the alleged obstacle itself to determine if it is an obstacle, having regard to the entire network of VIA and alternatives presented;
the economics of any obstacle and any remedy against the entire network budget and costs of time and revenue lost;
the frequency at which any obstacle has actually impeded travel and the circumstances of each case;
the alternatives available; and
the impact of any remedy on the entire network.

VIA submits that, in view of the foregoing, the following factors must be considered by the Agency in its determination of whether alleged obstacles are undue:

VIA needs the Renaissance Cars to augment its existing rolling stock and to meet its obligations to provide an efficient, viable and effective passenger rail network;
the Renaissance Cars were within the capital budget of VIA only because they were so advantageously purchased and retrofitted. VIA did not have sufficient money to meet its needs for 124 new cars from conventional purchases in North America;
the actual usage of passengers with disabilities of VIA is less than 0.1percent of its 3.95 million passengers. Passengers in wheelchairs have been successfully accommodated with minimal impediments;
the Renaissance trains themselves are substantially Rail Code-compliant. Costs of the CCD proposed changes are prohibitive and the changes are unnecessary. There have been no impediments to travel shown on these trains or in the VIA network. VIA operates on a limited capital budget and at an annual loss. Additional costs imposed will increase that loss and render VIA less efficient and viable;
the VIA network meets the needs of passengers with disabilities presently. The Renaissance trains with different characteristics add to that network capacity and provide choice;
any costs imposed on VIA necessarily render the system less efficient and viable, leading to increased costs to all passengers (whose interests must be weighed in the balance) and upon the people of Canada who pay the subsidy;
VIA has a policy for alternative transportation that is sensitive to passengers with disabilities and a history of satisfying those needs;
there is no actual evidence of obstacle. CCD's complaints were and remain speculative. The best policy is to wait and see if real impediments arise before imposing unnecessary costs on the travelling public and the people of Canada; and,
the undueness analysis and the application of the "as far as is practicable" direction in the CTA weighs overwhelmingly against the position taken by CCD and in favour of VIA.

VIA submits that, based on the foregoing, CCD has not met the burden to show that VIA has created an undue obstacle in its network or at all under sections 172, 170 and 5 of the CTA.

CCD

CCD notes that the Federal Court of Appeal in the Lemonde case indicated that, in determining whether an obstacle is undue, the Agency must first consider the dual aims of the CTA: that the rail network should be economic, efficient, viable and effective and that it should serve the needs of all travellers, including those with disabilities.

CCD submits that the Court held that the Agency has broad discretion in determining which obstacles can be eliminated and which cannot. CCD further submits that the Court indicated that the Agency must demonstrate that it considered the purposes of section 5 of the CTA and provide, in its reasons, confirmation that a balancing of interests, in relation to that policy was undertaken.

CCD emphasizes that the Court in the Lemonde case analogized the balancing of interests to that which is undertaken in human rights cases and made specific reference to the limit in human rights jurisprudence to accommodate, which is said to be undue hardship. CCD submits that the Court made it clear that the process for balancing the interests at stake can be gleaned from the human rights and Charter concept of "undue hardship". Finally, CCD submits that when interpreting the undue obstacles sections of the CTA, the Charter equality clause and human rights legislation represent an important source of context to which "due regard" ought to be paid.

CCD comments that human rights jurisprudence shows that balancing means that an obstacle to a person with a disability must be removed unless it is "due" and that it is "...not simply an exercise of adding up all the factors on each side and "sawing" each case off somewhere in the middle."

Regarding the balancing of cost factors, CCD notes that the Supreme Court of Canada held in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 that "...one must be wary of putting too low a value on accommodating the disabled. It is all too easy to cite increased cost as a reason for refusing to accord the disabled equal treatment."

CCD maintains that the Ontario Human Rights Commission has confirmed in its document entitled Policy and Guidelines on Disability and the Duty to Accommodate (November 23, 2000) (at pp. 29-32), that costs may only constitute undue hardship if they are quantifiable, shown to be related to the accommodation, and are so substantial that they would alter the essential nature of the enterprise or are so significant that they would substantially affect its viability. CCD submits that, with respect to this last factor, consideration should be given to:

the ability of the enterprise responsible for the accommodation to recover the costs of the accommodation in the normal course of business;
the ability of the enterprise responsible for the accommodation to distribute the costs of the accommodation throughout the whole operation; and
the availability of any grants, subsidies or loans from the federal government which could offset the costs of accommodation.

CCD submits that the foregoing guidelines provide the most complete and current review of the circumstances in which costs could amount to undue hardship.

CCD states that it is noteworthy that both human rights law and the national transportation policy outlined, in part, in subparagraph 5(h) of the CTA refer to the "viability" of the entity responsible for making provisions for persons with disabilities. CCD notes that commercial "viability" is stated to be a balancing concern in the Lemonde case. CCD asserts that, based on the foregoing, it could be concluded that obstacles, the costs of removing which would substantially affect the economic viability of VIA, may be considered to be "due" and that other obstacles would then be considered to be "undue".

CCD states that it does not agree with VIA that the Lemonde case or the Agency's legislative mandate requires the Agency to compromise in every situation; rather that, unless it can be demonstrated that the obstacle is due, it should be removed and the Agency should use its jurisdiction to order that the barrier that is confronting persons with disabilities be corrected.

CCD asserts that it has demonstrated that many obstacles would be undue based on the provisions of the Rail Code. CCD submits that the Code reflects the Agency's attempt to achieve wheelchair accessibility and that, without such accessibility, persons with disabilities would not enjoy equal access to the mainstream of society, nor would they be able to travel in a safe, dignified and comfortable manner, as all other Canadian travellers have a right to expect.

CCD submits that the CSA Barrier-Free Design Standard and the Rail Code are the result of the kind of balancing set out by the Federal Court of Appeal in its judgment in the Lemonde case. According to CCD, the Rail Code recognizes that there are opportunities for passenger rail carriers to make cost-effective advances in accessibility when introducing newly manufactured rail cars. CCD states that, conversely, the Rail Code recognizes that existing cars are more difficult to retrofit and may not warrant the cost because of their limited service lives.

CCD states that VIA does not acknowledge the opportunity it had when purchasing new rail cars to advance accessibility for Canadians with disabilities. CCD submits that, instead, VIA begins and ends its analysis by asserting that it is exempt from all but the most minimal level of accessibility expected of cars that have been in operation for generations. CCD further submits that VIA made no effort to distinguish newly manufactured cars from those still to be constructed.

Finally, CCD submits that VIA appears to view the Rail Code and the CSA Barrier-Free Design Standard as absolutes from which point the balancing process described in the Lemonde case begins. CCD further submits that neither the Rail Code nor the CSA Barrier-Free Design Standard are absolutes and are, instead, the product of a balancing process, which is comparable to that set out in the Lemonde case. Finally, CCD asserts that the balancing required has already occurred and that it "...isn't a matter of taking the standards and negotiating down...".

Analysis

Although, ideally, there would be no obstacles to the mobility of persons with disabilities in the federal transportation network, inherently there are obstacles or barriers to travel to persons with disabilities. The Agency's legislative mandate, as expressed in the CTA, is specifically to eliminate undue obstacles. As such, there is a distinction to be drawn between an obstacle and an undue obstacle. Thus, while the Agency may make a finding that a feature of a mode of transport represents an obstacle to some persons with disabilities, the Agency must then proceed to make a determination as to whether that obstacle is undue. This step in the process involves a balancing of the interests of persons with disabilities with those of the transportation service provider.

It is only upon a finding that an obstacle is undue and thus, not reasonably justified, that a transportation service provider may be ordered to take corrective measures to address the obstacle. This balancing process to determine undueness sometimes results in obstacles being determined to be not undue and thus not having to be remedied by the transportation service provider.

As with the term "obstacle", the term "undue" was 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 to be 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 persons with disabilities to use the federal transportation network without encountering obstacles and the transportation service provider's 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 not, as far as is practicable, constitute an undue obstacle to the mobility of persons with disabilities.

Generally 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 meet the needs of persons with disabilities. There are, however, some impediments that have to be taken into consideration. In the context of an application dealing with the particular design features of equipment, impediments often relate to the structural and economic implications of remedying obstacles that exist in such equipment.

These impediments may have some impact on persons with disabilities as, for example, they may not be able to use their own mobility aid on board the transportation equipment and may, instead, be required to use, if possible, an onboard wheelchair; and, in the event that they can use their own mobility aid on board the transportation equipment, they may only be able to access certain areas on board the equipment. 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 obstacles and it is in the weighing of these factors that the Agency applies the concept of undueness.

Concerning CCD's submission regarding the applicability of the human rights concept of "undue hardship", the Agency refers to its discussion of this issue which is set out in the "Framework of the Decision" section of this Decision. Although in that section the Agency rejects the applicability of the undue hardship test in the context of Part V of the CTA, the Agency recognizes that some of the factors identified by CCD concerning undue hardship may be applicable to an undue obstacle determination.

CCD has identified the difficulties that the obstacles which it alleges to exist in the Renaissance Cars pose to persons with disabilities. These are discussed in the Agency's analysis of the specific obstacles alleged by CCD. These difficulties will be balanced against the factors raised by VIA regarding undueness, which can be grouped into three main areas: (i) VIA's passenger rail network; (ii) structural factors; and (iii) economic factors. The following presents the general arguments put forth by VIA regarding these factors, CCD's position regarding VIA's arguments, and the Agency's analysis of both. In cases where VIA and CCD made specific submissions regarding structural and economic factors as they apply to particular features of the Renaissance Cars, these are set out in the Agency's analysis which follows on the specific obstacles.

Top of Page

b) Network argument

VIA

VIA submits that the CTA requires that the Agency consider VIA's entire passenger rail network, especially given that there is no specific complaint by a single passenger who has allegedly been impeded in travel. VIA submits that the governing case law requires that any examination of undue obstacles must be contextual having regard to alternatives within and outside the network which, in the case of the present matter, is VIA's network.

VIA describes its network in terms of its reservation system, an alternative transportation policy, ground services, special handling services, train accommodation, employee training and special service requests. VIA asserts that the Agency will be drawn into error if it confines its analysis to a single room, the features of a single wheelchair tie-down, the dimensions of a single car or the facilities on a single train consist.

VIA expresses the opinion that potential obstacles to movement should not be examined in isolation and cannot be remedied solely by removing the potential obstacle. Rather, VIA submits that alternatives need to be examined in order to determine whether the potential obstacle can be circumscribed, in addition to a consideration of removal of the obstacles. VIA asserts that its policies, employees, reservations system, and station attendants provide for alternatives and a person can "call in advance" to take advantage of them. VIA further asserts that "the very existence of a communication system eliminates the obstacle because it tells people....when they can go". VIA explains that people cannot expect to go on every train, at every time in every way. VIA asserts that this is not an obligation under section 5 of the CTA and that the communication system, which is part of the national train network, is a significant component which eliminates "the inch by inch" that CCD "would have you err into." Finally, VIA states that to do other than a fleet analysis would bankrupt the country and put rail transportation completely out of the hands of Canadians.

VIA submits that because all of its facilities and initiatives that assist persons with disabilities will remain after the introduction of the Renaissance Cars, these trains do not present any undue obstacles in the context of the national passenger rail network.

VIA advises that, in Phase I, for which the release date of the cars from Bombardier's Thunder Bay plant was March 6, 2002, the Renaissance Cars will not replace any part of VIA's fleet but will instead augment the LRC trains operating between Québec and Windsor by approximately one-third. VIA asserts that this fact is critical in the analysis of whether the Renaissance Cars constitute an undue obstacle to the rail travel of persons with disabilities. VIA states that it intends to continue the operation of its existing fleet and that all of its facilities, programs, schedules, fares, and special handling operations remain available to every member of the Canadian travelling public, and every one of the alternatives available to persons with disabilities across VIA's network remain unaffected.

VIA asserts that the Renaissance trains are only a part of "the fleet of the future" as they will be operating together with its existing fleet and will continue to operate together with new trains that will be built "hopefully as the moneys become available as we meet our needs to all Canadians". VIA notes, however, that "in later phases (2003) as planned, the Renaissance trains will replace the LRC trains on the Montréal to Halifax and Montréal to Gaspé routes."

VIA submits that the Agency must consider its network against the actual number of passengers with disabilities who travel on VIA and against the paucity of complaints that have been registered against it. VIA states that, in the year 2000, it carried 3.95 million passengers and, of those, less than 0.1 percent were persons with disabilities. VIA submits that, given this percentage, the service car accommodation for persons with disabilities would be sufficient to satisfy most needs. VIA further submits that there were "5,383 wheelchair requests in the year 2001" and "not one failed to have accommodation."

Finally, VIA asserts that the obstacles alleged by CCD to be in the Renaissance Cars are overcome by the adequate provision of other transportation services on its network. Based on this, VIA argues that there can be no finding of undue obstacles and CCD's application must, therefore, be dismissed. VIA states that, regardless, the Renaissance Cars meet or exceed the requirements of the Rail Code "in nearly every material aspect." In this respect, VIA submits that the Renaissance Cars are existing cars and, therefore, they qualify for consideration under section 1.3.3 of the Rail Code.

CCD

Concerning VIA's submission that there are choices within its network that are available to persons with disabilities such that, if their needs cannot be accommodated on board a Renaissance train, they can take an existing train at a different time, CCD submits that this does not represent 'choice' in the sense of positive choice. CCD explains that VIA's position represents the removal of choice and the freedom to travel; the denial of accessibility; and an undue obstacle to persons with disabilities. CCD submits that such a policy is not respectful of the fact that persons with disabilities have as much need to make appointments, travel for business or for pleasure and to arrive at their destination on time.

Regarding VIA's submission that there are alternatives to the Renaissance trains, CCD states that these trains will be brought into operation in the Québec-Windsor corridor and that older trains will eventually be transferred for use on western routes such that the idea of options is a fictitious one. Finally, CCD submits that VIA's network argument amounts to an acknowledgement by VIA that the VIA-1 cars are, in fact, more accessible than the Renaissance trains.

Concerning VIA's submission that an examination of VIA's network needs to be in the context of the number of persons with disabilities who travel by rail, CCD questions whether VIA intends that, because persons who use wheelchairs are a minority, there should not be, for example, codes requiring buildings to be accessible because most people who go into buildings are able to climb the stairs at the entrance. CCD submits that the rationale for sections 170 to 172 of the CTA is that it is recognized that "something needs to be done to prevent that kind of thinking from predominating and denying access." CCD explains that, if access is denied to persons who use wheelchairs, "...they don't travel, they don't complain; they stay home."

Regarding the service life of the Renaissance trains, CCD submits that trains have a useful life expectancy of 20 or 30 years and, in Canada, as much as 40 or 50 years, and comments that the Renaissance trains will be the trains for the next generation.

Analysis

The Agency notes that VIA asserted that any alleged obstacles in the Renaissance Cars are overcome by the adequate provision of other transportation services on VIA's network. The Agency further notes VIA's submission that all of the alternatives available to persons with disabilities across VIA's network remain unaffected by the introduction into service of the Renaissance Cars. However, the Agency notes that VIA has provided no evidence regarding its alternative transportation policy. Furthermore, the Agency finds that there is no evidence on the record that supports VIA's opinion that its existing fleet or its network, generally, will address obstacles that may be found to exist in the Renaissance Cars. The Agency is of the opinion that VIA cannot respond to such obstacles by generally stating that its network will address any deficiencies.

For example, contrary to VIA's assertion that its network can address any of the obstacles alleged by CCD to exist in the Renaissance Cars, the Agency notes that VIA's existing fleet does not provide sleeper units that are accessible to persons using Personal Wheelchairs.

In this regard, the Rail Code provides that eventually every passenger train that provides sleeping car facilities should have at least one sleeping car that has at least one wheelchair-accessible room and that this room should have, among other features, doorways that are wide enough to accommodate a person using a Personal Wheelchair; floor space that permits a person using a Personal Wheelchair to enter the room and use all the facilities therein; and a washroom that is accessible to a person using a Personal Wheelchair.

The foregoing expectation of the Rail Code is reflected in Decision No. 641-AT-R-1998 dated December 29, 1998, wherein the Agency found, with respect to VIA's existing cars, that the applicant's inability to access the washroom in her bedroom in the sleeper car using her own wheelchair constituted an obstacle to her mobility. The Agency did not find this obstacle to be undue because of the financial and other implications of making the structural changes required to make the sleeper cars fully accessible. However, the Agency noted VIA's commitment to improving the accessibility of its passenger rail cars in compliance with the Rail Code and the fact that the Code establishes that, eventually, every passenger train that provides sleeping car facilities should have at least one sleeping car that has at least one room accessible to persons with disabilities using a Personal Wheelchair.

There is a recognition in the Rail Code that existing sleeper cars may have structural limitations that may prevent them from being made accessible to a person using a Personal Wheelchair even when they undergo a major refurbishment, however, there is a clear expectation that newly manufactured sleeper cars should be designed to be accessible to persons using Personal Wheelchairs. As already discussed and, in the context of the Rail Code, the Agency is of the opinion that the Renaissance Cars, contrary to VIA's assertion, are newly manufactured cars and as such are subject to the higher accessibility standards reflected in the Rail Code.

The goal of the Rail Code that there be at least one sleeper unit that is accessible to persons using Personal Wheelchairs on every passenger train that has sleeper cars cannot be achieved by VIA's network as neither VIA's existing cars nor the Renaissance Cars provide sleeper units that are accessible to persons using Personal Wheelchairs, as found by the Agency in the "Accessible suite" section which follows.

On a more general level, even if VIA were able to demonstrate how its existing cars could address any obstacles found to exist in the Renaissance Cars, the Agency finds that VIA's argument that its network addresses any obstacles on the Renaissance trains fails based on the fact that, in phases beginning in 2003, the Renaissance trains will replace the LRC trains on the Montréal to Halifax and Montréal to Gaspé routes. In fact, VIA does not explain what alternatives will exist for persons with disabilities once operation of the LRC equipment is discontinued on these routes.

Additionally, although VIA stated that the Renaissance Cars are not "the trains of the future", it is apparent that they are an important component of VIA's network. VIA acknowledges the importance of the Renaissance Cars when it stated that they will increase the size of VIA's fleet by approximately one-third and that they will operate together with VIA's existing fleet and continue to operate together with new trains that will be built as funds become available. In addition, the Agency notes that VIA has indicated that the Renaissance trains have an estimated service life of 25 years and that they will allow VIA to redeploy some of its existing equipment to the Calgary-Vancouver corridor and other places. The Agency is of the opinion that it is probable that, given the estimated 25-year service life of the Renaissance Cars, the cars will replace some of VIA's existing equipment as it is retired from service.

Given the foregoing, the Agency does not accept that all of the alternatives available to persons with disabilities across VIA's network remain unaffected by the introduction into service of the Renaissance Cars nor that the cars are not, in some way, the trains of the future. Clearly the Renaissance Cars will be the only cars in operation on some of VIA's routes in the very near future and they will be a significant part of VIA's network for a considerable period of time.

Regarding VIA's opinion that the Agency must consider VIA's network against the paucity of complaints that have been registered against it, the Agency is of the opinion that if, in fact, there have been few complaints against VIA regarding its passenger rail network, this likely reflects a recognition by the community of persons with disabilities that existing equipment is not fully accessible to persons using their own wheelchairs. A case in point is VIA's existing sleeper cars. On the other hand, there is an expectation that new equipment, such as the Renaissance Cars, will be Personal Wheelchair-accessible. Additionally, the Agency is of the opinion that the community of persons with disabilities may be resigned to accepting the level of accessibility provided in existing equipment given that the Rail Code accepts that structural limitations may prevent some of the equipment from being made accessible to persons using Personal Wheelchairs.

With respect to VIA's opinion that the Agency must consider its network against the actual number of passengers with disabilities who travel on it, the Agency is of the opinion that such a factor is not determinative. As discussed, the Agency is of the opinion that Part V of the CTA is, by its nature, human rights legislation, which is specifically aimed at protecting the rights of a minority group; namely, persons with disabilities.

Furthermore, at the time when the Rail Code was developed by the Agency in consultation with the rail industry, it was determined by the Agency that, despite the then percentage of persons with disabilities who travelled by rail, a code setting out accessibility standards for travel by rail was warranted and viewed as being beneficial. In this regard, the Rail Code states that, in the 1995 Trans Access Information Base (Provides age-adjusted projections of the figures for adults residing in households determined by Statistics Canada in its 1991 Health and Activity Limitation Survey), an estimated 3.8 million Canadians 15 years of age and over, had some level of disability and that, of these persons, 168,000 travelled by rail in 1995. This equates to 0.5 percent of a population of approximately 32 million. The Agency is of the opinion that this percentage will only increase as the demand for accessible transportation increases as Canada's population ages.

The Agency is also of the opinion that the statistic cited by VIA does not represent persons with disabilities who may otherwise travel by train but for inaccessible features, such as the sleeper cars in VIA's existing fleet.

In light of the foregoing, the Agency finds that VIA has not demonstrated to the satisfaction of the Agency that its existing fleet or its network, generally, will address obstacles found by the Agency to exist in the Renaissance Cars.

Top of Page

b) General structural arguments

VIA

VIA indicates that the Renaissance Cars are in various stages of completion. VIA advises that, as of March 21, 2002, there were 72 completed cars, 42 empty shells and 10 partially completed cars.

VIA submits that, "...as soon as you touch a washroom, as soon as you move a pipe or a bit of wiring you are redoing the entire car, you might as well start from scratch."

CCD

CCD submits that whatever structural limitation could be said to exist in relation to completed cars, the same cannot be said to exist in the case of those cars for which work has not yet been started, where, for example, the walls and doors do not yet exist.

CCD submits that information gained during a viewing of the coach cars and subsequent information provided by VIA indicate that the strength of the Renaissance Cars is developed by below floor longitudinal members and the outer profile walls of the car body itself. CCD further submits that the "footprint" of the Crash Energy Management Zone depicted for each of the car types does not appear to vary with the interior configuration of the end of the car or whether or not interior walls are present. CCD clarifies that interior walls, such as those forming washrooms and bedrooms do not contribute to the structural strength of the vehicle and can, therefore be modified, changed or removed without affecting the structural integrity of the vehicle. CCD further clarifies that this fact is similar in concept to non-load bearing walls in a house that can be removed or changed at will and that this is demonstrated by changes such as the removal of customs officials' offices in order to expand the lounge, which are being made by VIA as part of its refurbishing of the Renaissance trains.

CCD submits that no evidence is called by VIA in support of a finding that there are structural limitations preventing it from removing obstacles that would otherwise be undue. CCD comments further that VIA has made no effort to distinguish newly manufactured cars from those still to be constructed.

CCD states that, unlike the situation with aircraft, the restricting factor in this case is not technology. CCD submits that every coach car and every sleeper car operated by National Railroad Passenger Corporation (hereinafter Amtrak) in the United States is already wheelchair-accessible and expresses the opinion that technology exists to make trains accessible.

Finally, CCD notes that it has focussed on obstacles that could be removed without requiring any modifications that would affect the structural strength of the Renaissance Cars. CCD further notes that the only modification identified by VIA as involving such structural changes was that of the external doors; a modification which CCD had not requested. CCD submits that, based on the record before the Agency, all of the undue obstacles identified by CCD could be removed without encountering structural limitations.

Analysis

The Agency notes CCD's assertion that it cannot be argued that there are structural impediments to addressing obstacles in those Renaissance Cars for which work has not yet begun. The Agency is of the opinion that, generally speaking, it is easier to modify rail cars that are shells or that are even partially completed than it is to modify rail cars that are completed and ready to be put in service. In this regard, the Agency notes that, in one of VIA's last written submissions, VIA advised that as of March 21, 2002, there were 42 empty shells and 10 partially completed Renaissance Cars.

The Agency also notes CCD's assertion that based on the fact that some of the Renaissance Cars have been reconfigured into baggage and dining cars, alterations can be made to completed cars and it necessarily follows that alterations can be made to those cars for which work has not yet started or for which work remains incomplete.

In conclusion, the Agency finds that VIA's argument is of little assistance and provides no compelling evidence that there would be general structural impediments to addressing any undue obstacles found to exist in the Renaissance Cars.

Top of Page

General economic arguments

VIA

VIA submits that the word "undue", when applied to the purchase of the Renaissance Cars, must be considered in the context of VIA's capital availability, its operating deficit and its defined service requirements, as directed by the Minister of Transport and the Government of Canada. Additionally, VIA submits that competing needs for capital, including those pertaining to safety, signalling, station upgrades and locomotives, and service requirements imposed by the Government of Canada must be considered by the Agency as part of its undueness analysis. Finally, VIA submits that certain of the relevant factors that need to be balanced in an undueness analysis may be collectively termed as operational factors. VIA explains that the operational factors to which it refers include: how the trains are operated; who makes management decisions; and the roles of the Minister, Parliament and the Department of Transport. VIA further explains that, in doing an undueness analysis, the Agency would need to involve the Ministers of Transport and Finance, the Department of Transport, VIA's employees, finance, costing and a "host of other employment decisions presumably".

VIA states that it must engage in careful, economically prudent long-term planning, particularly given the high cost of its equipment and its reliance upon defined government subsidies. VIA notes that, in the year 2000, Treasury Board granted it a "defined sum" of $401.9 million for all capital expenditures. VIA comments that this sum was considerably less than what it sought from the Government of Canada. VIA advises that some of this amount was required for infrastructure improvements, station repairs, the purchase of locomotives and other essential expenditures for operations, safety and signalling and that approximately $130 million was available to purchase new rail cars. VIA advises that it does not expect any further capital sums over the next five years for this purpose. VIA explains that the fleet size possible with $130 million is 116 cars but that this will increase to 139 cars by the end of 2008 at a further cost of $35 million. VIA explains that, in the face of this "constraint", it purchased the Renaissance Cars, which it characterizes as a "unique purchase unavailable at any other time and at a remarkably low cost".

VIA explains that the purchase of the Renaissance Cars was a "one-time opportunity" to buy ready-for-use cars and parts and that, in ordinary circumstances, it could only have purchased 39 cars with the same funds. VIA submits that, had it not acquired the Renaissance Cars, the process to have the same number of cars designed, engineered and built would have taken four years at a cost of over $400 million. Finally, VIA states that, in addition to the fact that the Renaissance trains could be purchased for 25 percent of the costs of any other equivalent train system, the receipt of 139 cars provides it with the opportunity to increase frequency and capacity in the corridor between Québec and Windsor and allows it to participate in additional opportunities in western Canada.

VIA advises that an analysis comparing the Renaissance trains and three train systems used by Amtrak, allows VIA to conclude that the purchase of the Renaissance Cars will provide VIA with a discounted cash flow or a net present value of $118 million on a capital investment of $130 million over the 25-year life of the Renaissance train system. VIA advises that when indirect operating and fixed costs are considered, the Renaissance train system will be operated at a loss and advises that this is consistent with all of its passenger operations which require a government subsidy. VIA submits that additional costs will increase VIA's annual operating loss and render it less efficient and viable. VIA further submits that any costs imposed on it will necessarily render the system less efficient and viable and will lead to increased costs to "all passengers and upon the people of Canada who pay the subsidy."

VIA submits that the advantages to be gained by reduced capital costs for the Renaissance Cars; their immediate availability; the fleet flexibility throughout VIA's entire system represented by 139 new cars and 14 new train sets; and the redeployment of other equipment to the Calgary/Vancouver corridor and other places made possible by the Renaissance Cars are included in the "concept of undue" and are all factors which answer any concerns of CCD regarding obstacles to the mobility of persons with disabilities.

Concerning the issue of remedies, VIA asserts that, to cause the renovation of cars which are fitted and ready to be put into service, is not "some minor thing; as soon as you touch a washroom, as soon as you move a pipe or a bit of wiring you are redoing the entire car, you might as well start from scratch." VIA questions whether the Agency can devise a remedy that "...imposes costs on the Parliament of Canada, on the entire network, or on a system."

VIA submits that remedying the obstacles would involve a redesign of complicated, extremely expensive cars. In its final oral argument VIA comments that "a small little change just to have a single view of it was a hundred thousand dollars. We are talking about multi millions of dollars...we are talking about expenditures of 130 millions of dollars already made..." VIA submits that the Renaissance trains are substantially Code-compliant and that costs with respect to CCD's proposed changes would be prohibitive. VIA asserts that the changes are unnecessary as there has been no impediment to travel using the Renaissance trains. Finally, VIA states that, where accommodations have been made, they are reasonable and justified, having regard to prohibitive costs for change and the lengthy delays occasioned by reconstruction.

CCD

CCD asserts that VIA must not be permitted to take a $400 million infrastructure subsidy from the federal government to create a future for passenger rail in Canada and spend all or a major portion of it on rolling stock which is less accessible than the antiquated train cars currently in use. CCD comments that VIA is "a Crown corporation. Essentially a public body from which leadership is expected; not leadership backwards in terms of accessibility, but leadership forwards."

CCD also asserts that, in terms of the $130 million which VIA presents as being allocated for the purchase of new rail cars, neither the budget for this project nor its timetable is written in stone. CCD asserts that either could be altered in order to ensure that the trains afford the level of accessibility that persons with disabilities in Canada are entitled to expect.

Regarding VIA's submissions that the purchase of the Renaissance Cars was a unique opportunity at a remarkably low cost, Mr. Fisher, P. Eng., submits that VIA ignored the significantly reduced passenger carrying capacity of the Renaissance Cars when compared to typical inter-city rail cars. Mr. Fisher asserts that, if VIA had purchased 39 intercity day coaches, these cars would carry approximately 120 passengers in first class or as many as 160 passengers in economy class as opposed to the Renaissance Cars, which carry only 50 passengers. Mr. Fisher concludes that the purchase of 39 inter-city rail cars for $130 million versus the 139 Renaissance Cars for the same amount of money would be even more economical and cost-effective in the long run.

CCD submits that the cost of making changes to improve accessibility and bring the Renaissance Cars into compliance with the Rail Code must be considered in the context of the considerable cost savings VIA achieved by purchasing trains which would not meet the regulatory standards for accessibility which are in place in countries such as the United States and the United Kingdom.

CCD notes that it has requested that costs not be used to justify allowing obstacles to remain and that it sought an injunction to prevent VIA from proceeding with the acquisition and retrofitting of the Renaissance Cars. CCD further notes that, in refusing the injunction, it was stated by the Agency that, if the Agency were to conclude that the Renaissance Cars do present some undue obstacles, VIA would then have to implement the corrective measures ordered by the Agency even if such were more difficult and expensive to implement as a result of VIA's decision to proceed with the retrofitting of the cars prior to the Agency's decision under section 172 of the CTA.

CCD submits that the economic viability of making necessary modifications to permit universal access is primarily dependent upon whether or not they involve structural members that provide inherent strength to the vehicle.

CCD notes that several modifications have been made to the trains, many of which are interior design changes simply to facilitate or enhance the service being offered to non-disabled persons. CCD cites, as an example, the offices for customs officials in the service car, which were removed to expand the lounge area in addition to the single washroom at the end of the coach opposite the wheelchair tie-down, which was going to be converted to an oversized luggage locker. CCD explains that, in both cases, the changes involve modifications to interior walls which are outside the footprint of the Crash Energy Management Zone and are of a nature that do not contribute to the structural strength of the cars. CCD submits that if changes such as these, which improve car interiors and services, can be accommodated economically, there is no reason that similar changes, such as changing the size and layout of the "accessible suite" to make it accessible as defined by in the Rail Code, cannot also be made at comparable costs.

CCD expresses the opinion that the Agency is aware that as markets for a commodity disappear, the cost can be anticipated to drop. CCD submits that it is reasonable to assume, therefore, that an important reason why the price VIA paid for the Renaissance Cars is low is because they are not "wheelchair accessible". CCD asserts that, "Having profited from the degree of their inaccessibility, VIA's unwillingness to spend a portion of this savings to make them more accessible should not be tolerated." CCD states that it is asking that, in light of the $270 million in savings that the Renaissance trains represent, a portion of that money be reinvested in making the trains accessible.

CCD submits that VIA's position is that there can be no determination of undue obstacle without assessing the cost impact of changing that which is alleged to pose an obstacle but that VIA has provided virtually no data to quantify any costs that might be associated with undue hardship and has repeatedly refused to provide the information necessary to calculate "undueness" associated with costs.

Analysis

The Agency is of the opinion that, as a basic principle, transportation service providers have a responsibility to provide accessible transportation services to the public and, as such, great care must be taken to ensure that both equipment and services provide an optimal level of accessibility. Furthermore, there is a reasonable expectation that, over time, the accessibility of transportation services will improve as new equipment is acquired or modified and as new technologies are developed. In this way, as equipment is added to a transportation service provider's fleet, the Agency is of the opinion that the transportation service provider has a responsibility to ensure that the equipment provides an optimal level of accessibility in the circumstances.

While there may not be regulations that prescribe the features and dimensions that will ensure, as far as possible, that rail equipment is accessible to persons with disabilities, there is substantial guidance on what constitutes accessible rail equipment. First and foremost, there is the Rail Code, in respect of which VIA expressed its commitment to abide by its terms when the Code was first introduced in 1998. There is also the CSA Barrier-Free Design Standard, which the Rail Code invites carriers to refer to and to adopt its technical specifications where it is appropriate. In this regard, VIA's own accessibility guidelines and specifications for its rail cars as they were in 1998 and reflected in Transport Canada report, Making Transportation Accessible - A Canadian Planning Guide (hereinafter VIA's accessibility guidelines) were generally compatible with those set out in the CSA Barrier-Free Design Standard. In VIA's accessibility guidelines, VIA specifies, among other features, minimum 82 cm (32.28") clearances for all doors (vestibule, railcar, washroom); washrooms that must have enough space for a passenger to transfer from a wheelchair to a toilet; and a designated place for a passenger who uses a wheelchair, which should be large enough to allow for a complete 360-degree turn.

The Agency is of the opinion that VIA, like any transportation service provider which is contemplating the acquisition or upgrade of equipment, has a responsibility to educate itself on the design features and dimensions that will and will not generally meet the needs of persons with disabilities. The Agency is of the opinion that the transportation service provider's responsibility in this regard is proactive and not reactive. It is not a matter of waiting to see whether the features of particular transportation equipment being considered for acquisition by the transportation service provider will present problems for persons with disabilities once the equipment is put in service. The Rail Code reflects this responsibility and urges carriers to consult with consumer groups when developing and testing new designs. However, where disputes arise as to the appropriate level of accessibility, the Agency's complaint adjudication mandate is to review the facts to determine the existence of obstacles and whether those obstacles are undue. In this way, the Agency's body of past decisions is available to transportation service providers to provide guidance on the Agency's views on accessibility.

The responsibility of rail carriers to ensure, as far as is practicable, that newly acquired equipment is accessible to persons with disabilities, has obvious implications for rail carriers' budgets and their allocation of resources. In this regard, VIA submitted that its capital availability and the competing needs for it, in addition to VIA's operating deficit, are relevant factors for the Agency's determination of whether any obstacles which have been identified are undue.

The Agency recognizes that, like any corporation, VIA has a budget for capital expenditures and that there are competing needs for its capital. However, the Agency is of the opinion that the costs associated with either acquiring transportation equipment that is already accessible or with making transportation equipment accessible are very important costs of doing business which warrant special attention and priority by transportation service providers like VIA. The Agency is of the opinion that such costs should always be budgeted for in assessing the total cost of purchasing or manufacturing equipment. This is reflective of the responsibility of transportation service providers, as discussed above, to ensure that the equipment provides an optimal level of accessibility in the circumstances.

Moreover, corporations continually reassess operational and commercial priorities and reallocate funds accordingly. The Agency is aware that VIA has spent money on features designed to make the Renaissance Cars accessible to persons who use wheelchairs and the Agency is of the opinion that, to the extent necessary, VIA should be prepared to consider reallocating funds from its operating budget to remedy any undue obstacles found to exist in the Renaissance Cars in order to ensure that the cars are accessible. In this regard, the Agency finds that VIA has not presented any evidence to indicate that it would be unable to modify its business plan and reallocate its resources to address any undue obstacles found to exist in the Renaissance Cars.

Regarding VIA's ability to allocate additional funds to remedy any undue obstacles found to exist in the Renaissance Cars, the Agency finds that VIA has not presented any evidence that it has exhausted the $401.9 million in funding for its five-year capital investment program. The Agency notes that VIA's public financial statements contained in its 2001 Annual Report disclose that for its 2000 and 2001 fiscal years, VIA received $45.9 million and $151.7 million, respectively, for capital projects.

The Agency acknowledges that once indirect and fixed costs are factored in, VIA expects that the Renaissance trains will operate at a loss. However, the Agency notes that this is in keeping with all of VIA's passenger operations. The Agency also notes that any expenditure that VIA makes, whether it pertains to remedying obstacles or whether it pertains to other capital projects such as station upgrades, will have the effect of increasing the company's operating loss. Moreover, this fact has not prevented VIA from incurring other costs, such as those incurred to retrofit the lounge in the Renaissance service car. The Agency also notes that VIA receives significant funding from the Government of Canada, both in respect of capital projects and in respect of operating needs.

Regarding VIA's submission that the benefits gained from the reduced capital costs for the Renaissance Cars and from the flexibility that they bring to VIA's network address any of CCD's concerns regarding the trains, the Agency is of the opinion that such benefits would not justify the presence of obstacles to the mobility of persons with disabilities found to exist in the Renaissance Cars. Furthermore, the Agency does not understand how reduced capital costs and the flexibility which the Renaissance Cars bring to VIA's network offer solutions to the obstacles to the mobility of persons with disabilities who want to travel on the Renaissance trains. The obstacles will remain, regardless of the monetary and operational benefits which will accrue to VIA as a result of the purchase of the Renaissance Cars. Similarly, while VIA may consider that the purchase of the Renaissance Cars was a unique opportunity to acquire substantially more equipment than it normally could with the funds that it had available and in such a short time frame, the Agency is of the opinion that such factors, in and of themselves, would also not justify the presence of obstacles identified in the Renaissance Cars. The Agency is of the opinion that the fundamental importance of accessible travel by rail to persons with disabilities cannot be set aside in favour of such benefits.

The Agency finds that VIA has provided no compelling evidence of economic impediments to addressing any undue obstacles found to exist in the Renaissance Cars.

Top of Page

AGENCY DETERMINATIONS

Having set out in the preceding section of this Decision VIA's general undueness arguments, the Agency will now present the submissions of the parties made with respect to CCD's specific concerns, together with the Agency's analysis of these in terms of whether features of the Renaissance Cars constitute obstacles to the mobility of persons with disabilities and, if so, whether these are undue. The foregoing is set out in the following sections of the Decision:

Safety issues
Findings of no obstacles
Findings of obstacles that are not undue
Preliminary findings of obstacles that are undue
Obstacle determinations with the final decision on undueness deferred
Direction to show cause
Costs
Dissenting opinion of Member Richard Cashin

I - SAFETY ISSUES

CCD asserts that the unique safety concerns of persons with disabilities are within the jurisdiction of the Agency. CCD notes examples where the Agency is concerned with safety features specifically designed for persons with disabilities on board passenger trains, namely: signage, slip resistant materials and call systems.

The Agency notes that some safety issues, such as those concerning the physical safety of transportation features like equipment and facilities, properly fall within the purview of the Department of Transport. However, the Agency does consider the safety implications to persons with disabilities in the provision of transportation-related services in the federal transportation network. For example, the Agency has always considered that a person with a disability's sense of safety and security is a relevant factor in its undue obstacle determination. Furthermore, while the Agency does not establish safety regulations and rules, it will consider the failure of transportation service providers to apply existing regulations, rules and related policies and procedures in its determination of the existence of undue obstacles.

Given that the following pertain to the physical safety of the Renaissance Cars, the Agency will forward CCD's concerns regarding these matters to the Department of Transport:

the only means of exit from the "accessible suite" is through the vestibule in the Crash Energy Management Zone and this "does not meet any known or minimum standards for egress";
in the event of an accident, persons with disabilities who might be using the washrooms in the coach cars would be endangered given that a portion of the washrooms is situated in the Crash Energy Management Zone;
persons using wheelchairs must travel through the Crash Energy Management Zone in order to access the "accessible washroom";
when the cars are on a curve and are moving from one track to another, the changing direction and configuration of the gangway through the interconnecting diaphragms will slew a wheelchair and its occupant, especially as the skewing reverses when the cars move back onto the tangent section of the side track. CCD expressed the view that moving from car to car while the train is in motion could present a hazard or, at the very least, a fright to a person who uses a wheelchair;
a derailment could result in sufficient misalignment of the gangway so as to prevent a person who uses a wheelchair from exiting the train;
persons who use wheelchairs have only one emergency exit available to them in the coach car and, in the event that the Crash Energy Management Zone collapses during an accident, a person using a wheelchair would have to be carried along the length of the coach car to the vestibule at the opposite end because the width of the aisle will not accommodate a person's wheelchair;
the electro-luminescent signs for emergency exits and other signs may not be visible to persons with a moderate degree of visual impairment;
in the event of an accident, due to the tendency of objects to move forward during a frontal impact, the seats directly in front of the wheelchair tie-down are obstructive and could pose a hazard to a person occupying the wheelchair tie-down. Similarly, a person occupying the wheelchair tie-down would likely come into contact with and be injured by the table in the wheelchair tie-down area;
there may be an increased risk of wheelchairs overturning while persons in wheelchairs use bridge plates and boarding lifts as a result of the increased space between the Renaissance Cars and station platforms; and,
when the stairs are retracted, the third or bottom step folds up to a vertical position but remains open and outside the envelope of the car such that, during winter operation, this step will become encrusted with snow and ice while the train is in motion and present a hazard to passengers unless each stair set is checked and cleaned by VIA personnel before passengers are allowed to disembark.

Top of Page

II - FINDINGS OF NO OBSTACLES

With respect to some of its concerns regarding the accessibility of the Renaissance Cars, CCD filed detailed evidence, some of which was supported by reports prepared by mobility specialists. CCD, like VIA, was provided with the opportunity to expand on its position as to whether the Renaissance Cars pose undue obstacles to the mobility of persons with disabilities. However, with respect to several of the features of the Renaissance Cars for which CCD noted concerns, the Agency found that CCD provided limited evidence.

Therefore, while the Agency recognizes that some of the features discussed below may, in fact, pose problems for some persons with disabilities, the Agency is unable, based on the evidence on file, to conclude that they constitute obstacles to the mobility of persons with disabilities.

1. Vestibule

Facts

The vestibule located in the service car outside the "accessible suite" is 132 cm (51.97") wide by 247 cm (97.24") long.

Positions of parties

CCD

CCD submits that the turning diameter of the vestibule is inadequate. CCD further submits that the vestibule is only 129 cm (47.17") wide, which is not enough clear floor space for a person in a wheelchair to make the required 90 degree turn to pass through the vestibule corridor to make their way to the adjacent coach car.

In his report, Mr. Woollam submits that, in order to enter the gangway leading to the coach car from the service car, a person using a wheelchair is required to make a 90-degree turn in the service car vestibule located outside the "accessible suite", the width of which is insufficient to make this turn. Mr. Woollam further asserts that, at 130 cm (51.18"), the width of the vestibule at the point of making the turn does not meet the Rail Code or the CSA Barrier-Free Design Standard, which requires a minimum clear floor area of 150 cm (59.06") in diameter to make a turn. It is noted that, at 130 cm (51.18"), this width is only 9.5 cm (3.74") greater than the "CTA-defined minimum length of a personal wheelchair footprint", which the report notes as being 121.28 cm by 74.93 cm (47.75" by 29.5").

CCD indicates that the national standard for the CSA Barrier-Free Design mandates a minimum clear floor area of 150 cm to make a 180-degree turn. CCD also points out that the Rail Code requires that the wheelchair tie-down should permit easy access to the wheelchair accessible doorways and washroom.

CCD questions how the turning diameter in the vestibule can be 140 cm (55.12") as reported by VIA given that this diameter exceeds the width of the vestibule.

VIA

VIA asserts that the vestibule represents a very large rectangle which allows even the largest wheelchair to be easily turned around. VIA states that the turning diameter of the vestibule is 140 cm (55.12") and advises that nowhere in the cars will there be a turning diameter of 150 cm (59.06"). Finally, VIA asserts that the vestibule is compliant with the Rail Code in that it permits easy access to wheelchair-accessible doorways and washrooms.

Analysis

As previously discussed, the Agency has determined that a Personal Wheelchair, defined in the Rail Code as requiring a minimum clear floor area of 75 cm by 120 cm (29.53" x 47.24") and a minimum clear turning space of 150 cm (59.06") in diameter, is the appropriate standard for the Agency to use when examining the various features of the Renaissance Cars.

The Agency notes CCD's and Mr. Woollam's concern that, in order to enter the gangway leading to the coach car, a person in a wheelchair is required to make a 90-degree turn in the vestibule and that there is insufficient space to do so. The Agency also notes Mr. Woollam's submission that the width of the vestibule at the point of making the turn does not meet the Rail Code or the CSA Barrier-Free Design Standard, which require a minimum clear floor area of 150 cm (59.06") in diameter to make a turn. While the Agency acknowledges that the dimensions of the vestibule do not provide a clear turning space of 150 cm (59.06") in diameter as specified in the Rail Code for a Personal Wheelchair, the Agency notes that the 150-cm (59.06") turning diameter referred to in the Rail Code is the clear floor space needed by a person using a Personal Wheelchair to make a 180-degree turn; not a 90-degree turn. Accordingly, the Agency is of the opinion that CCD has not demonstrated that a 150-centimetre (59.06") turning diameter is required or that the 132-cm width of the vestibule is insufficient to allow a person using a Personal Wheelchair to make a 90-degree turn into the gangway leading to the coach car.

As such, based on the evidence before it, the Agency finds that CCD has not demonstrated to the satisfaction of the Agency that the turning diameter in the vestibule constitutes an obstacle to the mobility of a person using a Personal Wheelchair who wishes to turn into the gangway leading to the coach car from the service car vestibule.

Top of Page

2. Onboard services

Facts

Rail carriers typically provide a wide range of onboard services pertaining to such things as meal services and various porter services. The Terms and Conditions of Carriage by Rail of Persons with Disabilities as set out in the Rail Code specify numerous onboard services, including those that a rail carrier should automatically provide to a passenger with a disability; those that a rail carrier should provide on request that do not require advance notice; and those for which rail carriers require advance notice.

Positions of parties

CCD

CCD submits that persons using onboard wheelchairs as well as other persons with disabilities will require staff assistance while boarding and while moving from the "accessible suite" to the "accessible washroom". CCD makes reference to provisions of the Rail Code, which state that a rail carrier should provide such assistance if requested in advance by a person with a disability.

CCD notes that VIA's document, Accessibility Program - Renaissance Train, makes no reference to service standards. CCD further notes that, during an inspection of the Renaissance Cars, VIA representatives advised that its onboard staff will assist persons with disabilities who are unable to access the lounge by bringing them meals. CCD states that VIA has indicated that assistance to persons with disabilities will be provided with respect to the transfer to onboard wheelchairs and by erecting tables at the wheelchair tie-down location. CCD states that it is aware that the transferring of persons with disabilities violates the lifting provisions of the collective agreement between VIA and its union and submits that, unless the agreement is changed, people who require transfers to onboard wheelchairs and into regular seats will receive no assistance from VIA personnel. Finally, CCD expresses a concern that VIA has not formally stated the extent of its commitment to provide these and other services.

Mr. Ross submits in his report that, if it is expected that persons with disabilities must be accompanied by attendants in order to travel because VIA is no longer prepared to provide the kind of access available currently on its trains, this would be an enormous setback to the independence of persons with disabilities.

VIA

VIA asserts that it will provide the services that it presently gives to all passengers with disabilities to those travelling on the Renaissance trains. Specifically, it indicates that it will provide such onboard services as providing meals to passengers occupying a wheelchair tie-down or the "accessible suite", assisting in transferring from wheelchairs to boarding chairs and assisting persons to the dining room through the provision of an onboard wheelchair. Furthermore, passengers occupying a wheelchair tie-down will also be able to purchase and receive the VIA-1 level of service in the economy coach cars.

With respect to transferring passengers from their wheelchairs to boarding chairs, VIA advises that it has trained its employees to assist in lifting and notes that some passengers with disabilities will be travelling with attendants who may be able to assist with this. Finally, VIA submits that the movement from the "accessible suite" to the "accessible washroom" will only require staff assistance in limited circumstances and that such will be available, as required.

VIA submits that it provides service standards and "functional equivalence" that give additional options to persons with disabilities that did not previously exist. VIA further submits that the "accessible suite" is dedicated to persons with disabilities and is an example of additional standards. VIA notes that the Renaissance trains are in addition to its existing fleet and states that persons with disabilities who do not wish to use the Renaissance trains can continue to use VIA's existing fleet for their travel purposes.

In response to a question by CCD as to whether VIA will provide a written commitment that it will immediately take the Renaissance trains out of operation if it decides in the future to reduce staffing levels necessitating the termination of some or all of the services which it says will be available, VIA submits that the question is hypothetical and irrelevant. Further, VIA states that it will fulfill its obligations to the travelling public, including persons with disabilities, as they are defined in law and advises that it has no plans to take any trains out of service but will not make any commitment regarding train operations. Additionally, VIA states that it does not expect to fail to meet any service standards but that it will not provide compensation as was requested by CCD to any persons who cannot be accommodated. VIA comments that, in any event, it can only address this issue on a case by case basis.

With respect to the "service standard" to which VIA has committed itself, VIA advises that it is set out in the document entitled Accessible Program - Renaissance Trains which VIA submitted to the Agency on August 31, 2001. VIA further advises that there is no change in the services that VIA has committed to provide to persons with disabilities on the Renaissance trains.

Analysis

The Agency recognizes the importance of the provision by rail carriers of onboard services designed to provide assistance to meet the specific needs of passengers with disabilities. The importance given to these services is reflected in the Rail Code, which specifies numerous such services, such as assistance with transferring between a wheelchair or other mobility aid and a person's passenger seat and assistance with moving to and from a rail car washroom, including assistance with using an onboard wheelchair.

The Agency is of the opinion that onboard services are an important element to ensuring that persons with disabilities have equivalent access to the various modes of travel in the federal transportation network. In this regard, the Agency is of the opinion that a person who uses a wheelchair and who can otherwise attend to his or her personal needs, should be able to travel without an attendant. However, a lack of onboard services would make this difficult for some persons who use wheelchairs and impossible for others. Due to the particular design features of the Renaissance Cars, and in particular the raised seating platform, onboard services take on added importance in the operation of the Renaissance trains. Given these particular design features, the Agency is of the opinion that more persons with disabilities travelling on the Renaissance trains will require a higher level of onboard services.

Although the Agency acknowledges CCD's concerns regarding VIA's onboard services, the Agency notes that VIA stated that its personnel will provide assistance to persons with disabilities who wish to transfer to an onboard wheelchair and to those who wish to move from the "accessible suite" to the "accessible washroom" and that it intends to provide to passengers who travel on the Renaissance trains the services that it presently provides to passengers with disabilities.

Given that the Agency is examining CCD's concerns in the context of the design of the Renaissance Cars as opposed to in the context of an actual travel experience, and in the absence of evidence to the contrary, the Agency is prepared to accept that VIA will provide an adequate level of assistance to persons with disabilities who travel on the Renaissance trains. Accordingly, based on the evidence on file, the Agency finds that CCD has not demonstrated to the satisfaction of the Agency that the issues that it has raised regarding the onboard services to be provided by VIA to persons with disabilities on the Renaissance trains constitute obstacles to the mobility of persons with disabilities. However, given the significance of this issue and the particular design of the Renaissance Cars, the Agency will monitor future applications that might be filed with the Agency with respect to service-related issues.

Top of Page

3. Storage of wheelchairs in the baggage car or service car storage room (The reader should note that this matter is separate from the question of whether a person with a disability should be able to retain his/her wheelchair in the "accessible suite" which is discussed later.)

Facts

Where a wheelchair or scooter which needs to be stored cannot be transported down an aisle which is too narrow, the service car storage area will be used for storage on the Montréal-Toronto overnight service. With respect to the other Renaissance trains on the Corridor day service and services between Montréal and Halifax/Gaspé, wheelchairs or scooters will be stored in the baggage car on each train, given that the service car storage area will be used for refrigeration purposes.

If necessary, the loading of wheelchairs and scooters into these storage areas will be performed using a wheelchair lift.

Positions of parties

CCD

With respect to the storage of wheelchairs in the service car, Mrs. Lemieux-Brassard questions how her wheelchair could be stored in that location given that it does not fold or collapse, cannot be dismantled and does not fit down the aisle of the service car. Ms. Lemieux-Brassard, therefore, submits that her wheelchair would need to be shipped separately and, as a result, it would not be available to her upon arrival at her destination.

With respect to the storage of wheelchairs and scooters in the baggage cars, CCD comments that this provides some assurance that they will travel on the same train as the passenger who requires them upon arrival, assuming service standards ensure that VIA will load the mobility aids as indicated. CCD, however, submits that, in a significant number of cases, there may still be a problem having a person's wheelchair available on arrival. CCD notes that the storage of a wheelchair in the baggage car or in the storage room in the service car will require that it be boarded externally with a lift such that considerable lead time will be required prior to boarding, and delays will result upon arrival. CCD submits that allowing a person to retain his/her wheelchair or storing it in the wheelchair tie-down when sleeping would produce major efficiencies for passengers and for VIA.

Regarding the "Overnight Train Consist", CCD submits that the external door entering directly into the "oversize/excess baggage storage" will only be available from one side of the train. CCD further submits that, as a result, when the platform access is from the aisle or right side of the service car, while a wheelchair may go through the external door, it is not clear that it will fit through the door of the storage room.

VIA

VIA's position is as set out in the facts.

Analysis

The Agency notes CCD's concerns that there may be delays in returning mobility aids to passengers upon their arrival and that a wheelchair may not fit through the door of the storage room in the service car. The Agency finds, however, that CCD has not developed these arguments and did not provide any specificity regarding its concerns. On balance, therefore, the Agency is prepared to accept VIA's assertions that there will be adequate storage for wheelchairs and scooters on the Renaissance trains. As such, based on the evidence before it, the Agency finds that CCD has not demonstrated to the satisfaction of the Agency that the storage of wheelchairs in the baggage car or in the storage room in the service car constitutes an obstacle to the mobility of persons who use wheelchairs.

Top of Page

4. "Accessible suite" (This section deals with features in the "accessible suite" that the Agency has found that CCD has not demonstrated constitute obstacles to the mobility of persons with disabilities. Other features of the "accessible suite" are discussed later in this Decision.)

Facts

The "accessible suite" is located in the service car. There are two sections to the suite: the sleeper unit and the adjoining washroom.

The sleeper unit measures 136 cm long by 120 cm wide (53.54" x 47.24"). There is a bench seat in the sleeper unit along the interior wall that separates the unit from the service car aisle.

There are two beds in the sleeper unit: one that is converted from the bench seat and a second one that unfolds from the wall above the bench seat.

The toilet, with the cover raised, is at a height of 47 cm (18.5") from the floor level. The width of the toilet is 37 cm (14.57") and the distance from the exterior wall to the centre of the toilet is 35 cm (13.78").

The sink is positioned on an angle in the corner beside the door. The toilet is located against the opposite wall and faces the sink. A flip-up grab bar measuring 81 cm ( 31.89") in length, is mounted on the back wall, to the left of the toilet at a distance of 70 cm (27.56") from the exterior wall and 35 cm (13.78") from the centre of the toilet. When the grab bar is in the 'down' position, the top of the bar is 74 cm ( 29.13") from the floor.

Positions of parties

CCD

i) Bench seat in the sleeper unit

In her report to CCD, Ms. Lemieux-Brassard submits that the bench seat in the sleeper unit creates a major problem because persons who use wheelchairs need proper positioning, similar to what they have when seated in their own wheelchairs which provide adequate support. Additionally, Ms. Lemieux-Brassard expresses the view that the positioning of the bench seat requires a transfer that cannot be done without a lift for some persons. In her report to CCD, Ms. McInnis submits that the minimum requirements for a side approach to seating have not been met.

ii) Front transfers to the toilet

Mr. Woollam asserts in his report to CCD that the toilet facilities only provide for a "right side transfer" and give no consideration to those persons capable of only a "left side transfer" or to the need for a front approach. Ms. Lemieux-Brassard asserts in her report to CCD that the only person with a disability who can use the "accessible washroom" is someone who can do a face-to-face transfer because there is not enough space between the wall and the toilet seat to permit a side transfer.

iii) Privacy in the washroom

Ms. Ringaert submits in her report that the length of the washroom is insufficient to allow "a manual wheelchair user (120 cm CSA)" to enter and close the door as a result of the wall in the sleeper unit against which is situated the bunk sofa bed, protruding into the washroom and as a result of some unused space which exists between the washroom and the service car aisle. Ms. Ringaert further submits that persons who use power wheelchairs and scooters could likely not enter the washroom and close the door and notes that this creates issues around privacy and dignity when using the "accessible washroom".

iv) Access to the sink in the washroom

Ms. Lemieux-Brassard asserts that a person in a wheelchair can only access the sink from the side and CCD submits that this can only be done after exiting the washroom and re-entering at a different angle. Ms. Lemieux-Brassard further submits that a person using the onboard wheelchair in the washroom would need to ask a VIA employee to move the wheelchair forward in order that the person can use the sink because, while there is some space next to the toilet seat and the wall, there is not enough to manoeuvre and turn around to face the sink.

Finally, in a letter to VIA, Mr. Boyd asserts that access to the sink would be very difficult for a person in a power wheelchair.

v) Space for attendant in the washroom

Regarding the overall dimensions of the washroom, in his report to CCD, Mr. Ross expresses the view that there is no space in the washroom for an attendant to assist a person with a disability.

VIA

The only submission filed by VIA regarding CCD's foregoing concerns pertains to front transfers to the toilet. In this regard, VIA asserts that the toilet in the Renaissance Cars provides for both front and side access and comments that this is superior to VIA's existing fleet of cars, which permits front access only.

Analysis

i) Bench seat in the sleeper unit

The Agency notes CCD's concern regarding the ability of persons who use wheelchairs to properly position themselves on the bench seat in the sleeper unit. The Agency also notes CCD's concern that the minimum requirements for a side approach to seating have not been met and that the positioning of the bench seat requires a transfer that cannot be done without a lift for some persons. In view of the fact that CCD did not develop these arguments and did not provide any specificity regarding these concerns, the Agency finds that CCD has not demonstrated that the bench seat constitutes an obstacle to the mobility of persons with disabilities.

ii) Front transfers to the toilet

Given that the evidence presented is unclear as to the general feasibility of effecting such a transfer to the toilet, the Agency finds that CCD has not demonstrated that the toilet constitutes an obstacle to the mobility of persons with disabilities for the purposes of effecting a front-transfer or a face-to-face transfer to the toilet in the "accessible washroom".

iii) Privacy in the washroom

Regarding the concern raised by CCD pertaining to the privacy of a person using a wheelchair in the "accessible washroom", the Agency is of the opinion that, as for any person, privacy while using a washroom is essential to the dignity of a person with a disability. The Agency notes that this principle is also reflected in the Rail Code which provides that a wheelchair-accessible washroom should afford privacy to a person in a Personal Wheelchair.

Although the Agency notes that Ms. Ringaert states that the length of the "accessible washroom" is insufficient to allow "a manual wheelchair user (120 cm CSA)" to enter and close the door, the Agency finds that sufficient evidence has not been filed to support this conclusion. Therefore, the Agency finds that CCD has not demonstrated that this constitutes an obstacle to the mobility of persons using Personal Wheelchairs.

iv) Access to the sink in the washroom

The Agency notes CCD's concerns regarding access to the sink by a person using a wheelchair. While the Agency is of the opinion that access by a person with a disability to sink should not be restricted, it finds that CCD has not demonstrated that the sink constitutes an obstacle to the mobility of a person using a wheelchair.

v) Space for attendant in the washroom

Regarding CCD's concern that there is no space in the washroom for an attendant to assist a person with a disability, the Agency finds that CCD has not presented sufficient evidence to support this position. Accordingly, based on the evidence before it, the Agency finds that CCD has not demonstrated that this constitutes an obstacle to the mobility of persons with disabilities.

Top of Page

5. Accessibility of the coach car washrooms and of the aisles in the coach and sleeper cars to persons using mobility aids other than wheelchairs

Facts

There are two washrooms at the rear of the coach car, located between the bulkhead wall and the gangway leading to the service car. The washrooms are separated by an aisle and measure 83 cm wide by 130 cm long (32.68" x 51.18") at the end closest to the bulkhead wall and 53 cm wide at the end closest to the gangway. The doorway to the washrooms is 44 cm (17.32") wide.

The aisle between the seats in the coach car is 65 cm (25.59") wide from the first row of seats to the second last row of seats.

The aisle in the sleeper car is 52 cm (20.47") wide at floor level. The aisle narrows to 50 cm (19.68") at one point, where a door was previously located.

Positions of parties

CCD

In his report, Mr. Woollam notes that the pocket doors to the washrooms provide a clear opening of 43.18 cm (17") wide when pushed fully into the pocket. Mr. Woollam expresses the view that the width of the doors forces one to "...almost go in sideways, which would make it very difficult for someone using a walker for example."

CCD submits that the aisle between the seats in the coach car is too narrow for most walkers. Mr. Fisher submits that a reduction in the already reduced capacity of the coach cars to possibly only two seats per row would be required to make the aisle wide enough to allow basic mobility of passengers using crutches and walkers.

CCD submits that the narrow aisles in the sleeper car make it impossible for persons using mobility aids such as crutches and walkers to use them. Similarly, Mr. Woollam states that the aisle in the sleeper car is extremely narrow making it difficult to pass through especially with walking aids and even for able-bodied passengers carrying luggage.

VIA

VIA did not file any submissions regarding the accessibility of the coach car washrooms and the aisles in the coach and the sleeper cars to persons using mobility aids other than wheelchairs.

Analysis

The Agency notes CCD's assertion regarding the inaccessibility of these features to persons using mobility aids other than wheelchairs. However, the Agency notes that CCD has filed no evidence to support this assertion. Accordingly, based on the evidence before it, the Agency finds that CCD has not demonstrated that these features constitute obstacles to the mobility of persons with disabilities.

Top of Page

III - FINDINGS OF OBSTACLES THAT ARE NOT UNDUE

1. Height of seats and 25-centimetre (9.84") step-up onto the seat platform in the coach cars

Facts

Each coach car, whether used for economy or VIA-1 service, contains fifty seats, in a two-one configuration in 16 of 17 rows; with two seats on one side of an aisle and one seat on the other side. In these 16 rows, including the seat in the last row of the single-seat side of the coach cars, each seat is mounted on a raised platform which is 25 cm (9.84") above the level of the floor. The height of these seats is 43 cm (16.93") from the top of the raised platform to the top of the seat cushion and 68 cm (26.77") above the floor level.

In the 17th row, VIA has removed the platform under the single seat located on the double-seat side of the cars and has installed a wheelchair tie-down mechanism in the floor with a modified and removable single seat at floor level on top of the mechanism.

With the exception of the single removable seat in the 17^th row and the double seats in the 16^th row directly in front of it, which have a different supporting seat structure, the platform for the other seats slopes down under the seats providing space for hand luggage, as well as a footrest for the person sitting behind.

Of the thirty-four aisle seats in the cars, a total of four aisle seats have movable aisle armrests; three are on the single-seat side and one is on the single removable seat. There are no movable aisle armrests on the double seats, although there is a movable armrest between the double seats.

Positions of parties

CCD

CCD notes that the seats, which are at a height of 68 cm (26.77") from the aisle floor, exceed the CSA Barrier-Free Design standard. CCD explains that the CSA Barrier-Free Design Standard specifies that a seat shall be located between 45 cm (17.72") and 50 cm (19.69") above the floor, which will accommodate a person transferring from a wheelchair.

CCD raises concerns regarding the height of the seats in the economy and VIA-1 coach cars and the 25-centimetre (9.84") step-up onto the platform on which the seats rest. In this regard, Ms. McInnis submits that if the height of the seats is within the range specified by the CSA Barrier-Free Design Standard, the estimated 20.32 cm to 25.4 cm (8" - 10") step-up to the seats should not affect a transfer from a wheelchair.

In his report, Mr. Woollam comments that the 25.4 cm (10") step-up into the coach seats is being used as a marketing tool for VIA in that it gives improved viewing out the windows. Mr. Woollam submits that the step-up may create an unexpected hazard to persons with mobility or visual disabilities that could result in tripping and falling when entering the seat or in missing the step when exiting the seat.

In his report, Mr. Ross expresses the view that the majority of people in wheelchairs will not be able to independently transfer to a seat in the coach car and that, for many ambulatory people with mobility disabilities, the raised platform will be difficult to access and dangerous to exit.

Finally, Ms. McInnis cautions that persons who have disabilities that affect cognitive, strength, endurance, and co-ordination abilities will experience difficulties negotiating the step-up and manoeuvring into a seat. Ms. McInnis submits that assistance will be required by many passengers and that the potential for injuries is increased greatly as persons leave their seat, given that many will forget about or cannot see the step down.

In his letter to VIA, Mr. Boyd submits that all, or at least some of the coach car seating, should be lowered to a height of not more than 45.72 cm (18"). Mr. Boyd comments that, while the Canadian Paraplegic Association understands that such a modification may not be possible on already-completed equipment, it believes that it is reasonable to expect VIA to make a commitment to have this modification incorporated as retrofitting before taking possession of existing stock and to strive to have uncompleted equipment incorporate this modification.

In response to VIA's submission that seats at either end of the economy and VIA-1 coach cars cannot be lowered because it would be unreasonable to disassemble cars that are already built or mostly built, CCD notes that VIA is relying on the fact that retrofitting has been proceeding while its application has been before the Agency. In this regard, CCD notes that the Agency, in its Decision No. LET-AT-R-356-2001, states "...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 ... are more difficult and expensive to implement as a result of VIA's decision to proceed with the retrofitting of the railway cars prior to any Agency decision under section 172 of the CTA."

Regarding VIA's submission that the seats cannot be lowered at either end of the economy and VIA-1 coach cars because 150 cubic feet of baggage storage would be lost in each car, CCD expresses the view that the amount of lost storage space is overstated given that VIA's response is based on the lowering of all the seats in the cars as opposed to just the seats at either end of the cars.

Regarding VIA's assertion that the seats cannot be lowered at either end of the economy and VIA-1 coach cars because it would require an entire redesign of the under-car ducting, with no obvious relocation space available under or through the cars, CCD submits that the ducts do not run under the seats. CCD asserts, therefore, that the lowering of seats in order to increase the amount of seating at aisle level, would involve minor changes to the ducting, comparable to those already made for the wheelchair tie-down. CCD submits that the complete reconfiguration of sleeper cars for other purposes confirms the conclusion that a modest modification such as lowering seats at the end of a coach car is feasible.

VIA

Regarding CCD's concerns about the floor level variations, VIA submits that the LRC trains provide different features and options suitable to individual needs.

VIA further submits that it does not consider it to be feasible to lower the seating in the economy or VIA-1 coach cars because:

it would not be reasonable to disassemble cars already built or mostly built in order to change seating arrangements and, of the 47 coach cars to be built, 36 have been completed and work on 11 has begun using the existing design of elevated fixed seating;
the elevated seating is designed such that the space under each seat provides 3 cubic feet of baggage storage space and in this way, lowering of seats without modifying the overhead luggage arrangement would result in the loss of 150 cubic feet of baggage storage in each Renaissance coach car, which could not be relocated elsewhere on the train; and
lowering the seats by about 24.13 cm (9.5") would require an entire redesign of the under-car ducting, with no obvious relocation space available under or through the car.

VIA advises that there is no change in the services that VIA has committed to provide to persons with disabilities on the Renaissance trains. With respect to service standards such as the provision of meals, assistance in transferring from wheelchairs to onboard chairs, and other services, VIA intends to provide the services that it presently gives to all passengers with disabilities to those travelling on the Renaissance trains. With respect to transferring passengers from their wheelchair to onboard wheelchairs where required, VIA advises that it has trained its employees to assist in lifting and notes that some passengers with disabilities will be travelling with assistants who may be able to assist with this.

Analysis

Obstacle

The Agency accepts CCD's concern that the majority of persons who use wheelchairs will not be able to independently transfer from their wheelchairs into a coach car seat and will, therefore, require assistance from VIA personnel to do so.

The Agency is aware that transfers of persons with disabilities between wheelchairs or onboard chairs and passenger seats always involve some degree of risk for persons with disabilities. The best transfer conditions permit a lateral transfer between two surfaces at the same level with no obstruction between the surfaces that would require a person to be lifted up and over the obstruction. It is for this reason that the Agency has encouraged and, wherever possible, required movable aisle armrests in both aircraft and rail cars.

In the case of the Renaissance Cars, with the introduction of a raised platform in the coach cars, persons with disabilities who need to be transferred to passenger seats will have to be lifted up as much as an additional 25 cm (9.84") to the seat. This fact will be exacerbated by a fixed aisle armrest at the majority of the seats, which will require persons to be lifted that much higher, thereby increasing the risk of injury to persons with disabilities.

The Agency notes that because the seats are resting on top of a 25 cm (9.84") platform, their height exceeds, by 18 cm (7.09"), the maximum height of 50 cm (19.69") above the floor which is specified in the CSA Barrier-Free Design Standard. Given the significant difference by which the height of the seats in the coach cars exceeds the maximum mandated by the CSA, the Agency is of the opinion that persons with disabilities will have difficulty transferring from their own wheelchairs or from onboard wheelchairs into seats and most may not be able to do so without assistance from VIA personnel.

Persons with disabilities who use wheelchairs and who are able to transfer independently into passenger seats in VIA's current equipment will lose such independence in the Renaissance Cars if the higher seats make it impossible for them to pull themselves up and over into the seats even after raising a movable armrest, assuming the seat has one. This results in a lower level of accessibility as persons in these situations will have to rely on the assistance of VIA personnel, when, with respect to the existing cars, they may be able to independently transfer into seats. This is contrary to the objective of the Rail Code of Practice, which is to improve the accessibility of rail cars for persons with disabilities.

It is apparent that the height of seats and the 25-centimetre (9.84") step-up onto the seat platform will create difficulties for some persons with disabilities. The Agency is aware that steps can be difficult for some persons with disabilities to ascend and descend, particularly for those persons who have mobility and visual impairments. Moreover, the Agency is of the opinion that the limited manoeuvring space between the rows of seats increases the difficulties and the possibility of a hazardous situation for persons with disabilities in trying to step up onto and down from the seat platform in the economy and VIA-1 coach cars. Finally, the Agency accepts CCD's concern that the 25-centimetre (9.84") step-up into the coach car seats may create an unexpected hazard to persons with mobility, cognitive, strength, endurance, co-ordination or visual impairments, who may find it difficult to negotiate either the step-up and subsequent manoeuvring into the seats or the step-down, and which could result in tripping and falling when entering or exiting the seats.

Based on the foregoing, the Agency is of the opinion that the height of the seats and the 25-centimetre (9.84") step-up onto the seat platform will pose difficulties for and possibly be hazardous to some persons with disabilities and, as such, the Agency finds that the height of the seats and the 25-centimetre (9.84") seat platform in the economy and VIA-1 coach cars on the Renaissance trains constitute an obstacle to the mobility of some persons with disabilities.

Undueness

The Agency is of the opinion that persons with disabilities should be able to access and use facilities and amenities on a train with as much independence as possible. In this case, because of the design of the raised seats, the Agency anticipates that a broad range of persons with disabilities will not be able to independently and/or easily access passenger seating on the Renaissance trains.

As a result of the height of the passenger seats in the Renaissance coach cars, it is clear that the accessibility of these cars is much more dependent on the level of onboard services provided by VIA personnel than is the case with VIA's existing rail cars. In this regard, the Agency notes that VIA has indicated that it intends to provide the same services which it presently gives to all passengers with disabilities to those travelling on the Renaissance trains and that it has trained its employees to assist in lifting, while noting that some passengers with disabilities will be travelling with assistants who may be able to assist with this. However, given the particular design of the seats in the Renaissance Cars, it is expected that the level of assistance needed by persons with disabilities to be provided by VIA will increase and possibly change in nature, as it could include providing a stepping box, guiding the person, holding their arm, and performing lifting and transferring techniques in a manner that is dignified and safe for the passenger. Furthermore, the Agency is of the view that it is VIA's responsibility to provide this assistance, where requested.

Although the Agency is concerned with both the seriousness of this obstacle to the mobility of some persons with disabilities and CCD's submissions regarding VIA's onboard services, the Agency is prepared to accept VIA's submission that it will provide the level of assistance needed by persons with disabilities and notes that this may be by such other means as set out above. Furthermore, insofar as VIA accommodates the needs of persons with disabilities by providing these types of services to enable these persons to have equivalent access to rail travel using the Renaissance Cars in a safe and dignified manner, the Agency is prepared to accept this as a reasonable accommodation of persons with disabilities with this particular rail equipment. However, given the significance of this issue and the particular design of the Renaissance Cars, the Agency will monitor the nature of any future applications that might be filed with the Agency with respect to service issues.

Based on the foregoing and the evidence on the file at this time, the Agency finds that the height of the seats and the 25-centimetre (9.84") step-up onto the seat platform in the economy and VIA-1 coach cars on the Renaissance trains do not constitute undue obstacles to the mobility of persons with disabilities.

Top of Page

2. Aisles between the seats in the coach cars, in the service cars and in the sleeper cars

CCD has raised concerns regarding the aisles in the coach car between the seats, in the service car and in the sleeper car. While separate submissions were made by the parties on these three areas, the Agency will provide one undue obstacle analysis in light of the similarities between the issues.

a) Coach car aisles

Facts

The aisle between the seats in the coach car is 65 cm (25.59") wide from the first row of seats to the second last row of seats.

Positions of parties

CCD

CCD notes that the CSA Barrier-Free Design Standard mandates a clear aisle width of 92 cm (36.22") except that, for a maximum length of 60 cm (23.62"), it may be reduced to 81 cm (31.89"). CCD also notes that the Ontario Building Code mandates an aisle width of 106 cm (41.73"). Additionally, in a chart attached to its March 18, 2002 submission, CCD indicates that the accessibility standards for the United Kingdom prescribe aisle widths of 85 cm (33.46"), while the United States prescribes 81.3 cm (32") for aisles leading to accessible sleeping compartments.

In his report, Mr. Woollam comments that the Renaissance Cars have a significantly smaller cross section than the equipment normally operated in Canada and are approximately 43 cm (16.93") narrower than the maximum width permitted for North American service. Mr. Woollam submits that this has resulted in the aisles being narrower than normally found in existing passenger equipment despite the two-and-one seating arrangement in the coach car.

CCD submits that the 65 cm (25.59") wide aisle that is between the seats in the coach car is too narrow for most wheelchairs. CCD further submits that VIA has not adhered to VIA's accessibility guidelines, which provide that "the aisle width from the entrance vestibule to the designated wheelchair place and washroom should be at least 76 cm (29.92")", and comments that these guidelines confirm that VIA was well aware of the needs of persons with disabilities.

Mr. Fisher expresses the view that the Renaissance Cars are not suitable for any retrofitting because their exterior and interior body dimensions are so much narrower than Canadian rolling stock. Mr. Fisher comments that the aisle in the coach car is narrow and that there are only three seats abreast, compared to four in most Canadian rolling stock and even five in some commuter coaches.

Mr. Fisher submits that a further reduction in the already reduced capacity of the cars to possibly only two seats per row would be required to make the aisle wide enough to allow basic mobility of passengers using their own wheelchairs. Mr. Fisher further submits that the already limited capacity will result in significant and permanently reduced revenues with the result that VIA's long-term viability will be harmed by the purchase of the Renaissance Cars. Mr. Fisher comments that, unlike VIA, Amtrak in the United States; Canadian commuter railroads such as GO Transit and BC Transit; and other railway companies throughout the world are switching to more economical, high-capacity two-level coaches that are already designed for access by persons with disabilities.

VIA

VIA notes that the aisle width in the existing LRC fleet is 52.5 cm (20.67") and asserts that this has not caused any problems or resulted in any complaints by passengers, including those who use wheelchairs. VIA comments that all aisles are suitable for its onboard wheelchair.

VIA refers to Mr. Woollam's assertion that the aisles are narrower than normally found in existing equipment and comments that, whether this is the case, depends on the reference chosen for comparison. VIA compares the widths of the aisles in the Renaissance coach cars with the following aisle widths in the existing VIA cars: 50.8 cm (20") in the LRC Cars; 49.53 cm (19.5") in the HEP 2 Cars; and 52.07 cm ( 20.5") in the HEP 1 Cars.

VIA also expresses the view that the contents of other accessibility codes are irrelevant to any consideration by the Agency on the basis that codes of practice must be viewed in their existing operating environment and cannot be analyzed clause for clause without a context.

Transport 2000 Canada Inc.

Transport 2000 comments that the Renaissance coach cars have superior accessible dimensions, including aisle widths of 65 cm (25.59") as opposed to 52.5 cm (20.67") in LRC coaches and VIA-1 cars.

b) Service car aisles

Facts

The aisle in the service car is 52 cm (20.47") wide at floor level. The aisle narrows to 49 cm (19.29") at one point, where a door was previously located.

Positions of parties

CCD

CCD submits that access to the lounge in the service car will be restricted to persons who are willing and able to transfer to an on-board wheelchair. CCD comments that such limitations on choice, while patiently tolerated by Canada's community of persons with disabilities for as long as it took to allow the Rail Code's retrofitting requirements governing old rolling stock to come into effect, are not acceptable as the new generation of passenger rail cars is brought into service. CCD expresses the view that the inaccessibility of the lounge denies persons with disabilities equal benefit to VIA's national passenger rail service.

CCD submits that it is possible to reconfigure the "accessible suite" on the basis that there is a significant amount of space available and that, in the process of reconfiguration, if wheelchair access were provided in the service car aisle, persons with disabilities would have access to the lounge and dining cars and would neither be confined to the suite and separated from friends and colleagues nor would they be dependent on VIA staff to bring meals.

Additionally, Mr. Boyd expresses the view that the interior of the service car should be modified to incorporate an aisle width of 71.12 cm (28") in order to allow full wheelchair access from the accessible sleeper unit to the lounge of the service car and to the adjoining coach car. Mr. Boyd comments that, while this may not be a requirement of the Rail Code, such a modification should be included as an operational requirement given the changes already being contemplated by VIA to ready the cars for Canadian operations.

VIA

VIA states that it is committed to delivering meals to the "accessible suite" and, if needed, access to the dining room is assisted through an onboard wheelchair.

c) Sleeper car aisles

Facts

The aisle in the sleeper car is 52 cm (20.47") wide at floor level. The aisle narrows to 50 cm (19.68") at one point, where a door was previously located.

Positions of parties

CCD

Ron Ross submits that persons who use wheelchairs will have to use the on-board wheelchair in order to travel through the sleeper car to another car.

Mr. Fisher submits that the aisles in the sleeper car cannot be widened without reorienting the sleeping space to even less economic proportions but that this may not be possible because of the limited lateral structural dimensions.

VIA

With respect to the report prepared by Mr. Woollam, VIA submits that the 50.8-centimetre (20") corridor width in the Renaissance Cars would be better described as "typical" rather than "extremely narrow" when compared to VIA's existing fleet of HEP 1 cars and 55.88 cm (22") corridors.

Analysis of aisles between the seats in the coach cars, the service cars and the sleeper cars

Obstacle

Consistent with the Agency's recognition of the importance to a person with a disability of his or her own wheelchair, as previously discussed in the "Principles of Accessibility" section, the Agency is of the opinion that aisles which accommodate onboard wheelchairs but do not accommodate persons' own wheelchairs could prevent some persons with disabilities from accessing areas on trains as not all persons with disabilities who use wheelchairs are willing or able to use an onboard wheelchair.

Further, in keeping with the Agency's decision to use the Personal Wheelchair as defined in the Rail Code as the appropriate standard to be used when examining the various features of the Renaissance Cars, the Agency is of the opinion that an aisle that is equal to or less than 75 centimetres (29.53") in width will not accommodate a person in a Personal Wheelchair while in motion, in that it does not reflect the additional space that is required on either side of a Personal Wheelchair in order to permit safe and easy manoeuvring by the person using the wheelchair.

In recognition of the expertise of the CSA in establishing appropriate dimensions and design features for buildings and other facilities which are meant to ensure access and use by persons with disabilities, including persons who use wheelchairs, the Agency is of the opinion that it is appropriate to refer to the CSA Barrier-Free Design Standard on aisle widths. This standard specifies that accessible routes, paths and corridors should be 92 cm (36.22") in width but allows a minimum of 81 cm (31.89") for a short indentation up to 60 cm (23.62") in length.

While the Agency recognizes that aisle widths of 92 cm (36.22") as specified in the CSA Barrier-Free Design Standard would probably accommodate most persons using their own wheelchairs, the Agency also recognizes the inherent space limitations in rail cars. As such, the Agency is of the opinion that this standard is likely not appropriate for aisles on trains. Moreover, the Agency is of the opinion that aisle widths on trains can be less than 92 cm (36.22") and still accommodate a person using a Personal Wheelchair. In this regard, the Agency has determined in the "Doors in the 'accessible suite'" section of this Decision, that 81 cm (31.89") is necessary in order to permit safe and easy manoeuvring through a door by a person using a Personal Wheelchair. In light of this, the Agency is also of the opinion that a width of at least 81 cm (31.89") would provide sufficient space on either side of a Personal Wheelchair to permit a person using a Personal Wheelchair to safely and easily travel down an aisle in the Renaissance Cars. The Agency notes CCD's submission with respect to the 85-cm (33.46") aisle widths in the United Kingdom and the 81.3 cm (32") in the United States standards for aisles leading to accessible sleeping compartments.

In light of the foregoing, the Agency is of the opinion that aisles that are less than 81 cm (31.89") in width constitute obstacles to the mobility of persons using Personal Wheelchairs.

Accordingly, the Agency finds that the width of the aisle in the coach car that is between the seats and the width of the aisles in the service car and the sleeper car, all of which are less than 81 cm (31.89"), constitute obstacles to the mobility of persons using Personal Wheelchairs.

Undueness

Although the Rail Code does not address aisle widths, it does provide that each train should be equipped at all times with at least one onboard wheelchair designed to permit the easy transfer of an occupant and easy manoeuvring of the chair, with assistance, in and between passenger rail cars. In this regard, the Agency notes that persons who can and wish to transfer to VIA's onboard wheelchair which, as indicated in the Agency's Inspection Report, measures 36 cm (14.17") in width, would be able to travel through the aisles between the seats in the coach car as well as in the service and the sleeper cars, albeit not independently.

While VIA's onboard wheelchair would allow some persons who use wheelchairs to travel through the above-noted aisles, as previously noted, many persons with disabilities cannot use onboard wheelchairs or can only use them with great difficulty because of the nature of their disability. Additionally, the Agency recognizes that access to certain areas on a train, such as a wheelchair tie-down and a wheelchair-accessible washroom, are essential to persons using their own wheelchairs. The Agency is of the opinion that these areas and the routes for accessing them need to accommodate persons using Personal Wheelchairs. As such, aisle widths that only accommodate onboard wheelchairs could prevent some persons who use wheelchairs from accessing areas on the Renaissance trains which are essential to their accessible travel by rail.

Although the Agency is of the opinion that it is preferable that persons who use wheelchairs be able to move throughout a train using their own wheelchair, the Agency recognizes that space on trains is limited and the implications of making modifications to accommodate persons using their own wheelchairs may be such that it is impracticable for all areas on trains to be accessible to persons using their own wheelchairs. To the extent that areas on the Renaissance trains are not essential to the accessible travel by rail of persons who use wheelchairs and, in considering the structural and economic implications of making modifications to accommodate persons using their own wheelchairs, the Agency is of the opinion that, depending on the circumstances, it may be reasonable that certain areas on the Renaissance trains be accessible using only onboard wheelchairs. In this regard, the Agency notes that, in Decision No. 515-A-1997 regarding the adequacy of aisle widths in aircraft passenger cabins to accommodate wheelchairs, the following was said in respect of the economic implications of widening the aisles:

The Agency is further of the view that the cost of the modifications required to aircraft passenger cabins, including the loss of revenues due to the removal of passenger seats in order to create additional space to accommodate an "ordinary wheelchair" (The Decision stated: "As per the Canadian Standards Associations standards, the minimum clear floor area required to accommodate such a wheelchair and occupant is 750 mm [75 cm] wide and 1200 mm [120 cm] long."), would adversely affect the financial viability of the air carrier. Consequently, the Agency finds that the fact that an "ordinary wheelchair" cannot be accommodated in the passenger cabin does not constitute an undue obstacle.

Unlike the aisle that is between the two washrooms in the coach car through which a person using his/her wheelchair must travel in order to access the wheelchair tie-down in the coach car or the "accessible washroom" in the adjacent service car, the Agency is of the opinion that the aisle between the seats in the coach car is not essential to the accessible travel on the Renaissance trains by persons who use wheelchairs. Specifically, the need of a person who uses a wheelchair to remain in his/her own wheelchair is met through the provision of the wheelchair tie-down, which can be accessed without having to travel down the aisle between the seats in the coach car, such that it is not necessary that the aisle between the seats accommodate a person's own wheelchair in order for a person using a wheelchair to travel in the coach car. Furthermore, some persons who use wheelchairs will be able to travel down the aisle in the coach car by transferring to VIA's onboard wheelchair.

In addition, the Agency is of the opinion that the economic implications of widening the aisle between the seats in the coach car would be very significant given that either one of the three seats would need to be removed or all of the seats would need to be replaced with narrower ones. The Agency is of the opinion that the loss in revenues associated with the removal of one-third of the seats would have a significant negative impact on VIA's ongoing profitability and that, in the case of narrower seats being installed, substantial costs would be incurred to remove the existing seats and to purchase and install replacement seats.

Regarding the aisle in the service car, the Agency notes that the width of the aisle will not accommodate a Personal Wheelchair such that a person will not be able to access the lounge using a Personal Wheelchair. While the Agency is of the opinion that it is preferable that persons using wheelchairs have access to the lounge using their own wheelchair, given VIA's commitment to provide food and beverage services from the lounge to a person who occupies the wheelchair tie-down or the "accessible suite", the Agency is of the opinion that the aisle in the service car is not essential, in the same way as is the aisle between the coach car washrooms, to the accessibility of travel by rail of persons who use wheelchairs.

Additionally, given that any widening of the aisle in the service car would result in the narrowing of the "accessible suite" which, as discussed later in this Decision, already presents obstacles to the mobility of persons using personal wheelchairs, the Agency is of the opinion that the structural implications of widening this aisle are such that it would not be beneficial overall to persons who use wheelchairs.

Finally, regarding the aisle in the sleeper car, as with the aisle that is between the seats in the coach car and the service car aisle, the Agency is of the opinion that this aisle is not essential to the accessible travel on the Renaissance trains by persons who use wheelchairs. Specifically, sleeping accommodations for a person who uses a wheelchair are provided in the "accessible suite" which is located in the service car as opposed to in the sleeper car, such that it is not necessary that the aisle in the sleeper car accommodate a person's own wheelchair in order that he/she may obtain sleeping accommodations on a Renaissance train provided that the "accessible suite" reflects an appropriate level of accessibility.

Additionally, the Agency notes that any widening of the aisle in the sleeper car would result in the narrowing of all of the sleeper units.

In light of the foregoing, the Agency finds that the aisle in the coach car between the seats, the aisle in the service car, and the aisle in the sleeper car on the Renaissance trains do not constitute undue obstacles to the mobility of persons using Personal Wheelchairs.

Top of Page

3. Height of toilet seat in the "accessible washroom"

Facts

The toilet seat, with the lid raised, is 47 cm (18.50") above the floor.

Positions of parties

The Agency notes that the following submissions by CCD and VIA are based on a measurement of 48 cm, taken prior to the Agency's last inspection report.

CCD

CCD submitted that, at a height of 48 cm (18.90") from the floor level, the toilet is too high and notes that the CSA Barrier-Free Design Standard specifies a toilet seat height of between 40 and 46 cm (15.75" to 18.11") above the floor. CCD expresses the view that, contrary to VIA's submission that the height of the toilet cannot be adjusted, the toilet is a wall-hung unit, for which there may be some flexibility or allowance to adjust its height.

VIA

VIA disagrees with CCD's argument that the toilet is too high on the basis that the Rail Code does not specify a minimum or maximum height for a toilet. VIA characterized as being very minor what it thought to be a 2 cm (.79") difference between the height of the toilet and the 46 cm (18.11") maximum specified in the CSA Barrier-Free Design Standard.

VIA notes that the toilet cannot be lowered because of its design and, in light of the 2 cm (.79") difference, expresses the view that it is unreasonable to make any modifications.

Analysis

Obstacle

The Agency is of the opinion that the design and location of amenities and fixtures should be such that they facilitate easy access and use by persons with disabilities, including persons who use wheelchairs.

The Agency notes that the foregoing principle is reflected in the Rail Code which provides that a toilet should be of a height and location that allow easy transfer for a person in a Personal Wheelchair.

Regarding CCD's concern that the toilet in the washroom is too high, the Agency notes that the CSA Barrier-Free Design Standard states that preferences for toilet seat heights vary considerably. In this regard, the CSA Barrier-Free Design Standard states, "[h]igher seats may be an advantage to some ambulatory persons with disabilities but a disadvantage to persons in wheelchairs". It further states that seats ranging in height from 40 to 46 cm (15.75" to 18.11") above the floor are a "reasonable compromise".

While VIA submitted that the difference between the height of the toilet in the "accessible washroom" and the maximum specified by the CSA Barrier-Free Design Standard is "very minor", as previously discussed, the Agency recognizes the expertise of the CSA for establishing standards for design features and dimensions for amenities and fixtures in order to ensure that they are accessible to and usable by a wide range of persons with disabilities. Therefore, the Agency is of the opinion that a toilet height that exceeds the maximum specified in the CSA Barrier-Free Design Standard could pose difficulties for some persons in wheelchairs to use the toilet.

Based on the foregoing, the Agency finds that the height of the toilet seat in the "accessible washroom" constitutes an obstacle to persons who use wheelchairs.

Undueness

As discussed in the "Principles of Accessibility" section, the Agency recognizes as an important principle of accessible travel, that the design and location of fixtures and amenities should be such that they facilitate easy access and use by persons with disabilities. More specifically, the Agency is of the opinion that it is essential that persons with disabilities, including those who use wheelchairs, have access to an "accessible washroom" when they travel. An obvious component of a washroom that is accessible to persons using wheelchairs is a toilet that can be easily accessed and used by such persons.

As a result of the toilet seat in the "accessible suite" being higher than the CSA standard, some persons using wheelchairs may have difficulty transferring to the toilet. However, the Agency finds that CCD has not presented any compelling evidence that the one centimetre (.39") by which the height of the toilet in the "accessible suite" exceeds the maximum height specified in the CSA Barrier-Free Design Standard would pose significant problems for persons using wheelchairs in transferring to the toilet. In this regard, the Agency notes that the range in toilet seat heights in the CSA standard is described as being a "reasonable compromise" in view of the considerable variance in preferences for toilet seat heights. As such, unlike other CSA standards which specify very precise dimensions or features, the range for toilet seat heights reflects a flexible accessibility standard. The Agency is of the opinion that CCD has not provided a compelling argument that a 1-centimetre (.39") difference would pose a significant problem for persons using wheelchairs.

In view of the foregoing, and based on the evidence before the Agency at this time, the Agency finds that the height of the toilet in the "accessible suite" does not constitute an undue obstacle to the mobility of persons using wheelchairs.

Top of Page

4. Lack of shower in the "accessible washroom"

Facts

The "accessible suite" has a washroom that adjoins the sleeper unit in the suite. There is no shower in the washroom.

Positions of parties

CCD

Ms. Lemieux-Brassard is concerned that there is no shower in the "accessible washroom" or anywhere else in the Renaissance Cars that could accommodate a person who uses a wheelchair.

VIA

While VIA did not specifically address the lack of a shower, VIA expressed the view that the washroom in the "accessible suite" has all necessary access and fittings for persons using wheelchairs.

Analysis

Obstacle

The Agency supports the principle that persons with disabilities should have equal access to the federal transportation network and, as such, should have access to the same service options that are available to other passengers. The Agency has already noted that the underlying intention of Parliament in promulgating the accessible transportation provisions was to achieve full integration of persons with disabilities in society and essential to this notion of full integration is access to the full range of services provided to other passengers.

It, therefore, follows that to deny persons with disabilities service options that are available to other passengers creates, in principle, obstacles to the mobility of persons with disabilities. Accordingly, the Agency finds that the lack of a shower in the Renaissance Cars that is accessible to persons who use wheelchairs constitutes an obstacle to their mobility.

Undueness

The Agency notes that the right of persons with disabilities to equal access to the federal transportation network has been tempered in the CTA by the notion of practicability, as found in the national transportation policy and as incorporated in the notion of "undueness" found in Part V of the CTA. In this way, the Agency is of the opinion that, to the extent that a service is not essential to enable a person to travel, depending on the circumstances and nature of the service, the Agency may find that the fact that a service is not available to persons with disabilities is not an undue obstacle.

In the present matter, the Agency notes that it is VIA's intention to deploy the trains on routes for which the maximum duration of an overnight trip is one night. In these circumstances, the Agency is of the opinion that access to a shower is not essential to enable a person to travel on the Renaissance trains.

In view of the foregoing, and based on the evidence before the Agency at this time, the Agency finds that the lack of a shower in the "accessible washroom" does not constitute an undue obstacle to the mobility of persons using Personal Wheelchairs.

Top of Page

5. Exterior doors to the service car situated at the end closest to the "accessible suite"

Facts

There are two exterior doors on each side of the service car which lead into the vestibule located outside of the "accessible suite". When opened, the doors swing out and across the exterior wall of the car body. The width of the exterior door openings, when measured from door frame to door frame, is 107 cm (42.12"). The usable width of the door openings, when measured at floor level between a footplate (designed to cover a part of the door opening mechanism) and the horizontal line drawn from the angled interior wall of the vestibule, is 80 cm (31.50").

Positions of parties

CCD

CCD states that it is concerned that the external entrance to the Renaissance service car closest to the "accessible suite" is not "wheelchair accessible."

CCD submits that the issue revolves around the "useable width" of the doorway, based on the dimensions of a Personal Wheelchair. CCD notes that, according to the Rail Code and the CSA Barrier-Free Design Standard, a "wheelchair accessible door" is 81 cm (31.89") in width. CCD points out that VIA's own Passenger Railcar Guidelines provide that "clearances for all doors (vestibule, railcar, washroom) should be at least 82 cm (32.28"), wide enough for wheelchairs to pass". CCD states that these and other Canadian codes, standards and guidelines consistently maintain that 81 cm (31.89") is the minimum width for a door. CCD comments that Canadians with disabilities know that wider doors are now being introduced in many areas used by the general public, but that 81 cm (31.89") is the minimum door width that they can expect to encounter as they travel from one end of the country to the other. Finally, CCD submits that its experts, Mr. Ryan, Ms. Ringaert and Mr. Harding, make a convincing case for doors to be wider than 81 cm (31.89") and expect this minimum will be increased but that, in the meantime, CCD is asking the Agency to treat doors that are not "wheelchair accessible" as undue obstacles. CCD comments that "there can be no excuse for not knowing that 81 cm (31.89") of "usable width" is the minimum acceptable "wheelchair accessible door" as Canada enters the 21^st century."

CCD states that, unlike all the other doors under review in its application, in the case of the exterior doors, "clear space" and "usable space" are not necessarily the same things. CCD submits that, provided the door can be approached by a person in a wheelchair at a slight angle, the "clear width" of the door would appear to make it "wheelchair accessible". CCD explains that Mr. Woollam estimates this angle as being 10 degrees or less and that he is of the opinion that a person using a wheelchair should have no difficulty approaching the doorway from within the service car at such an angle.

CCD notes that Mr. Woollam has not observed the platform lifts or ramps that will be used with the Renaissance trains and that, consequently, he cannot confirm whether the lift would accommodate an exterior approach (and exit) to the door at the required angle. As such, CCD requests that the Agency direct VIA to ensure that the level boarding platforms being designed by VIA permit persons in wheelchairs to approach the exterior door in a manner that would permit access through a "wheelchair accessible door".

CCD states that, in the event that the lift cannot accommodate even this slight deviation from a direct approach, there is a simple and low cost alternative available to VIA. CCD explains that, according to Mr. Woollam, there is no reason why VIA could not cope at least 1 cm (.39") off the footplate at a negligible cost and without fundamentally altering the plate's purpose, which he identifies as covering the lever that "kicks" the door out when it is being opened. CCD advises that the plate's function in guiding passengers towards the stairs would be minimally altered because the stairs end well inside the space defined by the plate. CCD states that it is Mr. Woollam's view that the exterior door would not be a significant factor when assessing the doorway's wheelchair accessibility.

CCD states that it has generally requested that the Agency make specific findings of "undue obstacle" and exercise its discretion to make an order that directs the removal of these obstacles. CCD further states that, to the extent possible, CCD supports leaving it up to VIA to determine how it achieves these results from among available options. CCD comments that the concept of a "wheelchair accessible door" is clearly functional. Finally, CCD requests that VIA be directed to ensure that the door be "wheelchair accessible" by affording 81 cm (31.89") of "usable space" to those entering or exiting in a "personal wheelchair".

VIA

In a submission regarding the width of doors in the accessible areas on the Renaissance trains, VIA advises that, as part of the modifications necessary to widen the doors to 81.28 cm (32"), two exterior doors would need to be widened, which would involve structural changes to the exterior portion of the train and the Crash Energy Management Zone.

VIA states that absent a significant redesign of the Crash Energy Management Zone, the safety provided by this system would be compromised if the exterior doors were widened.

VIA asserts that the cost, planning and associated delay in widening the doors within the service car approximate to the "accessible suite" and to the wheelchair tie-down location to 81.28 cm (32") are too great to justify the expense. VIA notes that Bombardier states that it would take forty-five days at a cost of at least $100,000 to prepare an estimate of the cost and time to widen the doors to 81.28 cm (32") in the accessible portions of the Renaissance Cars. VIA states that, if the preparation of such an estimate were undertaken, it would take approximately nine to twelve months for Bombardier to prepare the appropriate engineering and construction drawings. VIA submits that the cost and timing for the actual work is indeterminate.

VIA advises that it has not asked Bombardier to prepare the estimate of the cost of the work because it, alone, is high and the associated delay extensive. VIA states that it remains of the view that the costs of completing the estimate, the engineering and construction drawings and the work would be prohibitive and would result in delays which would also be prohibitive.

Analysis

Obstacle

The Agency notes CCD's concern that, as a result of the interior wall inside the vestibule being bevelled, the usable width of the exterior doors of the service car at the end closest to the "accessible suite" is reduced and, therefore, the doors must be approached at a slight angle in order to maximize accessibility and meet the criteria for a "wheelchair accessible door".

The Agency further notes CCD's request that the Agency direct VIA to ensure that the level boarding platforms being designed by VIA enable persons in wheelchairs to approach the exterior doors at an angle that permits access through a "wheelchair accessible door".

As discussed in the "Doors in the 'accessible suite'" section, the Agency is of the opinion that a doorway that is equal to or less than 75 cm (29.53") in width will not accommodate a person in a Personal Wheelchair while in motion, in that it does not reflect the additional space that is required on either side of a Personal Wheelchair in order to permit safe and easy manoeuvring by the person using the wheelchair. In terms of what width will accommodate a person in a Personal Wheelchair that is in motion, the Agency has determined that a width of 81 cm (31.89") will provide the required additional space and that, therefore, doorway widths that are less than 81 cm (31.89") constitute obstacles to persons using Personal Wheelchairs.

Although the width of the exterior doors in the service car at the end closest to the "accessible suite" is 107 cm (42.12"), when measured from door frame to door frame, the usable width is only 80 cm (31.50"). Accordingly, in light of the foregoing, the Agency finds that these doors constitute obstacles to persons using Personal Wheelchairs.

Undueness

As previously discussed, the Agency recognizes, as an important principle of accessible rail travel, that persons who use wheelchairs should be able to remain in their own wheelchair and to access features and amenities that are specifically designed to meet their needs. In this regard, it is clear that adequate exterior doorway widths are an essential feature of accessible rail travel for persons who use wheelchairs in that appropriate doorway widths are required to allow access to the rail car, including access to its features and amenities. In recognition of the importance of the exterior doors to the accessibility of the Renaissance Cars to persons using wheelchairs, the Agency is of the opinion that the difficulties that can result from the inadequate width of the exterior doorways may compromise the ability of persons using wheelchairs to safely and easily enter the service car and access the "accessible suite" or turn into the gangway to access the wheelchair tie-down.

As noted above, the Agency is of the opinion that a door opening needs to be at least 81 cm (31.89") in width in order to provide sufficient space on either side of a Personal Wheelchair to permit safe and easy manoeuvring through a door. As such, the usable width of the exterior doors in the service car at the end closest to the "accessible suite" also needs to be at least 81 cm (31.89"). This dimension, which reflects the CSA Barrier-Free Design Standard for doors, provides 3 cm (1.18") of additional space on either side of the Personal Wheelchair footprint, which is 75 cm (29.53") in width, to ensure safe and easy manoeuvring through a door.

The Agency notes VIA's submission that widening the exterior doors would involve structural changes to the exterior portion of the train and in the Crash Energy Management Zone with possible implications for the safety of the zone. In view of the inherent structural complexities of a rail car body and, given VIA's foregoing submission, the Agency is of the opinion that there are significant structural and economic implications of widening the exterior doors.

The Agency recognizes that the 80-centimetre (31.50") usable width of the exterior door openings, when measured at floor level between the footplate and the door frame on the opposite side, provides 2.5 cm (.98") of additional space on either side of a Personal Wheelchair, as opposed to the 3 cm (1.18") as specified in the CSA Barrier-Free Design Standard.

While more space would generally be needed to control and manoeuvre a wheelchair through a doorway when the train is in motion, given that the exterior doors will only be used when the train is stationary, the Agency is of the opinion that the 0.5 cm (.20") reduction in space on either side of a Personal Wheelchair will not impede the ability of persons using wheelchairs to safely and easily travel through the exterior doors. The Agency finds that when weighed against the significant structural implications and associated costs of widening the exterior doors, the exterior doors in the service car at the end closest to the "accessible suite" do not constitute an undue obstacle to the mobility of persons using Personal Wheelchairs.

Top of Page

IV - PRELIMINARY FINDINGS OF OBSTACLES WHICH ARE UNDUE

1. Movable aisle armrests on coach car seats

Facts

Each coach car contains fifty seats, in a two-one configuration in 16 of the 17 rows; with two seats on one side of an aisle and one seat on the other side. In the last row, there is a single seat on both sides of the aisle. Each seat, with the exception of the single seat located in the last row behind the double-seats, is mounted on a raised platform which is 25 cm (9.84") above the level of the floor. The height of these seats is 43 cm (16.93") from the top of the raised platform to the top of the seat cushion and the top of the seat cushion is 68 cm (26.77") above the floor level.

With respect to the last row on the double-seat side of the coach cars, VIA has removed the platform under the single seat and has installed a wheelchair tie-down mechanism in the floor. The modified seat, which is now removable, is installed at floor level on top of the wheelchair tie-down mechanism.

With the exception of the single removable seat in the 17^th row, as well as the double seats in the 16^th row directly in front of it, which have a different supporting seat structure, the platform on the other seats slopes down under the seats providing space for hand luggage, as well as a footrest for the person sitting behind.

Of the 34 aisle seats in these cars, a total of four aisle seats have movable aisle armrests; three are on the single-seat side and one is on the single removable seat. There are no movable aisle armrests on the double seats, although there is a movable armrest between the double seats.

The total number of seats, including those with movable aisle armrests, varies in the coach cars due to the provision of wheelchair tie-downs. The wheelchair tie-down spaces, which are provided in the last row on the double-seat side in the economy coach cars, will normally be occupied by a single removable seat. Upon request, this seat can be removed to provide space for a person occupying a wheelchair, which as a result, reduces the total number of seats to 49; aisle seats to 33; and movable aisle armrests to three. In this situation, the three seats with movable aisle armrests are all located on the single-seat side in the coach cars.

Positions of parties

CCD

CCD notes that the Rail Code requires that at least ten per cent of aisle armrests on the passenger aisle seats in a coach car containing a wheelchair tie-down should be movable and that these should be evenly distributed throughout the car.

CCD notes that there are four seats out of 50 in the coach car that have movable aisle armrests. CCD also notes that movable aisle armrests are provided only on single seats and submits that this limits seating arrangements for some persons with disabilities. CCD further submits that because none of the aisle armrests on double seats are movable, these seats may not be accessible to obese persons or others who require a double seat because of their disability. CCD comments that providing one or two movable aisle armrests on a double seat would be helpful in situations where a person with a disability requires, because of his or her disability, to travel with a companion or simply wishes to be able to speak to a companion during a trip.

Mr. Ross expresses the view that all armrests should be movable in order that persons with disabilities have a choice of where to sit, like all other passengers. Mr. Ross adds that, as a minimum, there should be a comparable selection of seating options available to persons with disabilities.

In his letter to VIA, Mr. Boyd submits that all, or at least some of the coach car seating, should have "flip-up" armrests to facilitate a transfer from a standard or on-board wheelchair. Mr. Boyd comments that while the Canadian Paraplegic Association understands that this modification may not be possible on already-completed equipment, it believes it is reasonable to expect that VIA would make a commitment to have this modification incorporated as retrofitting before taking possession of existing stock and strive to incorporate this modification in uncompleted equipment.

VIA

VIA notes that there are four seats out of 34 aisle seats which have movable aisle armrests and submits that this exceeds the voluntary standard in the Rail Code, which requires that at least ten percent of aisle armrests be movable.

VIA advises that, while it is feasible to install movable aisle armrests on the side of the coach cars containing the double seats, it would require that the armrest and seat reclining mechanism be re-engineered because the aisle seats on the double seat side, unlike those on the single seat side, do not have a second fixed armrest in which to relocate the existing reclining mechanism.

Analysis

Obstacle

Fixed aisle armrests make the transfer of passengers with mobility impairments to and from aisle seats very difficult in view of the limited space normally available around passenger seats and the resultant need to lift the passenger up and over the armrest to reach the passenger seat. As such, fixed aisle armrests subject these persons with disabilities to unnecessary risk of injury during a transfer.

Ideally, transfers between persons' own wheelchairs or onboard wheelchairs and passenger seats take place by lateral movements between two surfaces that are of the same level with no obstruction between the two surfaces that would require persons with disabilities to be lifted up and over. In this way, movable aisle armrests are an important component in facilitating transfers of persons who use wheelchairs as a raised aisle armrest reduces the height over which a person who uses a wheelchair must be lifted when transferring to and from a seat. Furthermore, movable aisle armrests permit easier access by other persons with disabilities who require more manoeuvring room to reach their seats. For these reasons, the Agency has long encouraged carriers to provide movable aisle armrests on board transportation equipment.

The Agency is of the opinion that the importance of movable aisle armrests in the Renaissance coach cars cannot be overemphasized, given the particular design feature of these cars; that being seats raised on a platform 25 cm (9.84") above floor level. In this way, even where movable aisle armrests are provided, persons with disabilities who wish to transfer to passenger seats will have to be lifted up as much as an additional 25 cm (9.84") in order to clear the seat edge. Where no movable aisle armrests are provided, there will be significant barriers to access for some persons with disabilities by adding another significant distance over which a person with a disability would need to be lifted.

The Agency has always supported the principle that persons with disabilities who need to transfer into a passenger seat should have a reasonable selection of seats from which to choose. This is reflected in the Rail Code which promotes movable armrests on at least 10 percent of the passenger aisle seats in coach cars with a wheelchair tie-down and that these seats be evenly distributed throughout the car.

With respect to the number of seats with movable aisle armrests, the Agency notes that, with 3 or 4 movable aisle armrests of the 33 or 34 aisle armrests, the Renaissance coach cars meet the Rail Code standard that 10 percent of aisle armrests be movable. However, it should be noted that this standard was based on existing rail equipment which has seats mounted at floor level. The Agency is of the opinion that there was no expectation at the time the Rail Code was developed that rail equipment would provide for seating raised on platforms mounted above the train floor and, thus, the particular problems with this design feature were not addressed as part of the consultation process. In light of the problems identified by the Agency earlier in this analysis, there is no doubt that more people will be affected by the presence of fixed aisle armrests in the Renaissance coach cars, particularly in view of the fact that a person with a disability who may not have otherwise required a movable aisle armrest, may now require one to facilitate accessing the seats due to the raised platform.

With respect to the location of movable armrests, the Rail Code provides that the movable aisle armrests should be evenly distributed throughout the rail car; the intention being to provide a selection of seating to meet the different needs of persons with disabilities. However, it is clear that in this case, the movable aisle armrests are not evenly distributed in that they are all located on the single seat side. Furthermore, while the Rail Code only provides for movable aisles armrests in the coach car where the wheelchair tie-down is located, the Agency notes that VIA has installed movable aisle armrests in all coach cars. The Agency is of the opinion that this is an appropriate area for VIA to exceed the Rail Code as the design of the seats in all of the coach cars makes accessing the seats that much more difficult.

The Agency is aware that some persons require the use of more than one seat to accommodate their disability and/or to provide adjacent seating for an attendant to provide services of a personal nature related to the person's disability during a trip, such as administering medication and assisting with meals. The Agency is of the opinion that there are no seats in the Renaissance coach cars that will meet the multiple needs of some persons with disabilities who require both a moveable aisle armrest to facilitate transfers to and from a seat, as well as an adjacent seat to accommodate their disability either for themselves or for an attendant to provide assistance of a personal nature. The choices for such persons are to either place themselves at greater physical risk by being lifted and transferred to an elevated seat over a fixed armrest and, in the case of persons travelling with an attendant, to occupy a seat with a moveable armrest and have their attendant provide assistance by standing in the aisle of the coach car. The Agency is of the opinion that it is essential that an attendant be able to sit beside the person with a disability to whom he/she is providing assistance. An attendant who is either seated too far from the person with a disability or who is required to stand beside the person in order to attend to his/her personal needs, has a negative impact on the dignity and privacy of the person with a disability and poses a risk to the safety of both the person with a disability and the attendant.

In light of the above, the Agency finds that the lack of movable aisle armrests on the double-seat side of the Renaissance coach cars constitutes an obstacle to the mobility of persons with disabilities.

Undueness

As set out above, the Agency is of the opinion that movable aisle armrests on double seats are essential to the accessible travel by rail of persons with disabilities who require the use of more than one seat in order to accommodate their disability, either for themselves or for an attendant to sit directly beside them. The Agency is of the opinion that the difficulties which result from the lack of movable aisle armrests on the double seats in the Renaissance coach cars, as described above, are significant enough that they can compromise the ability of some persons with disabilities to travel on the Renaissance trains.

Notwithstanding the importance to persons with disabilities of movable aisle armrests on seats that adjoin other seats and the difficulties posed to such persons by the lack of movable aisle armrests on the double seats in the Renaissance coach car, the Agency recognizes that there are structural and economic implications to VIA of addressing this obstacle which must be weighed in the Agency's assessment of the undueness of this obstacle.

The Agency accepts VIA's submission that it is feasible to install movable aisle armrests on the side of the coach car containing the double seats; the Agency further notes VIA's assertion that this would require that the armrest be re-engineered to accommodate the seat function mechanisms. In this regard, the Agency notes that movable aisle armrests that also contain seat reclining mechanisms are typical on aircraft. As such, it is apparent that the technology to make such modifications exists and that it is a matter of applying this technology to the double seats in the Renaissance coach cars.

The Agency notes that neither VIA nor CCD filed submissions regarding the specific economic implications of installing movable aisle armrests on the double-seat side in the coach car. However, the Agency notes that it appears that the costs would largely pertain to the re-engineering of armrests and seat reclining mechanisms and the installation of movable aisle armrests.

While the Agency notes that the number of movable aisle armrests in the coach cars meet the Rail Code standard of 10 percent, the Agency has found that the lack of movable aisle armrests on the double-seat side is an obstacle. In light of the fact that movable aisle armrests are already installed on the single seat side of the coach cars, it would appear that the most practical and reasonable solution to remedy this obstacle would be the installation of movable aisle armrests on some double seats.

The Agency is also of the opinion that if the four movable aisle armrests had been evenly distributed at the outset, two of them would have been located on the double-seat side. As such, the Agency finds it reasonable that VIA should, in addition to providing the four movable aisle armrests on single seats, make the necessary modifications to provide at least two movable aisle armrests on the double-seat side in the Renaissance coach cars.

Based on the foregoing and on the evidence filed by VIA, the Agency is not convinced that the obstacle presented by the lack of movable aisle armrests on the double-seat side of the coach cars cannot be eliminated. As such, the Agency's preliminary finding is that this obstacle constitutes an undue obstacle to the mobility of persons with disabilities.

Top of Page

2. Wheelchair tie-downs

CCD has raised concerns relating to the space in the wheelchair tie-downs in the economy coach cars which are marshalled immediately adjacent to the "accessible washroom" in the service cars. The Agency recognizes that the marshalling of the economy coach car and the service car in this manner creates an "accessible area" essential for persons who wish to remain in their own wheelchairs. However, while the Agency does consider issues arising from the marshalling of rail cars into consists in the "Train consists" section, it is of the opinion that the evidence does not support the ready identification of a fixed group of economy cars that will always be marshalled with the wheelchair tie-down immediately adjacent to the "accessible washroom" in the service car. As such, the Agency will not limit its analysis to a subset of economy coach cars and must consider the economy coach cars in general in this analysis.

Facts

The wheelchair tie-down in the Renaissance Cars consists of a space to accommodate a person using a wheelchair and the related mechanism fixed on the floor and attachments used to secure a wheelchair to the floor. Each Renaissance economy coach car has a wheelchair tie-down installed between the last row of double seats and the bulkhead wall, with a single removable seat installed in the space. If VIA receives appropriate advance notice, which is generally at least one hour prior to departure, the single seat can be removed to provide a wheelchair tie-down space for a person who wishes to remain in his or her own wheelchair.

Between the wheelchair tie-down and the bulkhead wall, an air duct in the shape of a wedge, which measures 20 cm long by 44 cm wide by 49 cm high (7.87" x 17.32" x 19.29"), lies at the base of the bulkhead wall. The distance from the exterior wall to the air duct is 15 cm (5.91").

The double seats in front of the wheelchair tie-down overhang the space due to the angulation of the seat backs, and the lower part of the supporting structure of these seats is open to the wheelchair tie-down space. The floor space below the overhanging double seats in front of the wheelchair tie-down space is 34 cm long by 113 cm wide and 47 cm high (13.38" x 44.49" x 18.50").

The length of the clear floor space in the wheelchair tie-down area, as measured from the air duct to a vertical line drawn from the top of the double seat supporting structure in front of the wheelchair tie-down, is 95 cm (37.40"); however, the length of the floor space measured from the air duct to the end of the opening at the base of the double seat supporting structure is 150 cm (59.06").

The width of the floor space at the end of the opening at the base of the double seat supporting structure is 113 cm (44.49"). The width of the floor space at the beginning of the opening, measured from the exterior wall to the base of the single seat across the aisle is 189 cm (74.41").

A bi-fold table, the same as those located at all other seats, is installed on the back of the double seat supporting structure nearest the car window. The bi-fold table is 66 cm (25.98") above the floor and measures 51 cm long by 42 cm wide (20.08" x 16.54") when fully deployed; the clear height from the floor to the bottom of the supporting structure of the table in the lower position is 42 cm (16.54"), but the table can be raised approximately 20 cm (7.87") by moving it to the upper position of the table supporting structure.

There is a sliding glass door at the end of the aisle, which recedes into the bulkhead wall separating the wheelchair tie-down area from two washrooms located at the end of the coach car. The width of the bulkhead door opening is 74 cm (29.13").

a) Space within the wheelchair tie-down

CCD raises three specific concerns related to the space within the wheelchair tie-down area:

the clear floor space of the wheelchair tie-down area to accommodate a stationary wheelchair;
the manoeuvring space in the wheelchair tie-down area to enter and exit the wheelchair tie-down; and,
the space for attendants.

For ease of reference, the Agency will consider the positions of parties and provide an obstacle analysis for each concern related to space; however, in view of the fact that the same analysis of whether the space in the wheelchair tie-down can be expanded is required in order to consider the possibility and practicability of addressing each of the three specific concerns, the Agency will provide one undueness analysis after setting out the parties' specific submissions regarding undueness.

i) The clear floor space of the wheelchair tie-down to accommodate a stationary wheelchair

Positions of parties

CCD

CCD notes that the Rail Code is silent in terms of the specific dimensions of a wheelchair tie-down and expresses the view that this is understandable given the variables involved, such as how far the wheelchair tie-down is from the wall and whether it is in an alcove. CCD notes, however, that the Code provides standard specifications for a wheelchair of 75 cm in width and 120 cm in length (29.53" x 47.24") and submits that the wheelchair tie-down area in the Renaissance trains is too short to accommodate such a wheelchair. Ms. Ringaert states in her report that it appears that only the smallest wheelchair, such as a child's wheelchair, could actually use the 110 cm (43.31") space in the tie down area.

CCD refers to a diagram of the wheelchair tie-down provided by VIA, which depicts a wedge-shaped air duct behind the tie-down. CCD expresses the view that this duct cannot be removed. CCD also notes that the diagram indicates that the seats in front of the wheelchair tie-down overhang the wheelchair tie-down space. Based on these observations, CCD contends that the clear floor space for the tie-down begins at the edge of the wedge and extends to the back of the overhanging seats. Prior to the installation of the wheelchair tie-down, CCD estimated that, based on the scales of the diagram and the advice of CCD's experts, the clear floor space for the wheelchair tie-down is 94.6 cm (37.24") in length and 76 cm (29.92") in width. In his report, Mr. Woollam submits that, even at 117 cm (46.06") in length, it is clear that a wheelchair will not fit in the wheelchair tie-down area. Finally, CCD states that, "... as with the case of the doors, the personal wheelchair would not fit quite apart from all the ergonomic issues about manoeuvring into the space."

CCD submits that 'clear floor space' means space that is not under a seat or obstructed by an obstacle; it is space that is available for a wheelchair. In his report, Mr. Harding notes that the standards of which he is aware specify that the space reserved for a wheelchair tie-down is to be "clear space", given that it should not be assumed that all wheelchair footrests will fit under seats. In this regard, Mr. Harding notes that foot boxes are sometimes used in place of footrests and that these are generally higher and deeper than footrests. Additionally, Mr. Harding notes that scooters have front-wheelchair housing that can be too high to fit under overhanging seats. Finally, Mr. Harding asserts that the space in the Renaissance coach car that is under the seats in front of the wheelchair tie-down would impede a person's ability to turn his or her wheelchair in order to enter or exit the area.

Mr. Harding further submits that the size of the space available for a wheelchair in a wheelchair tie-down depends on the accessibility of the space. Mr. Harding explains that, if it is possible to wheel straight into the space, then a person using a wheelchair can be accommodated in "a clear space that is dimensionally the size of the wheelchair's 'footprint' (i.e., 750 mm by 1200 mm)". However, Mr. Harding submits that, if, as appears to be the case based on his review of the diagram of the wheelchair tie-down in the Renaissance Cars, it is necessary to make a hard left turn into an alcove while passing through a narrow bulkhead door in order to access the wheelchair tie-down, then additional space is required to allow the entrance and exit of a "personal wheelchair".

CCD notes that, according to a diagram provided by VIA, the clear space of the wheelchair tie-down on the existing VIA-1 train which was retrofitted to provide a wheelchair tie-down, is 163 cm (64.17") in length. CCD further notes, however, that Mrs. Lemieux-Brassard states in her report that in the area behind what is indicated in the drawing as being the tie-down space on the existing VIA-1 cars, there is a removable box for the equipment used in the tie-down and that the space occupied by this removable box provides an additional 23 cm (9") to accommodate larger wheelchairs. Ms. Lemieux-Brassard comments that, when using the existing VIA-1 coach cars, she has been able to travel with dignity and independence. Ms. Lemieux-Brassard states that she would not be able to use her own wheelchair in the Renaissance wheelchair tie-down and that, therefore, she would require assistance to transfer from her wheelchair to an onboard wheelchair. Finally, Ms. Lemieux-Brassard comments that, from her perspective, the Renaissance Cars are "a major step backwards and a colossal disappointment."

CCD states that the installation of the wheelchair tie-down in the viewed coach cars makes it possible to measure the sufficiency of the wheelchair tie-down space. CCD submits that the measurements confirm that the wheelchair tie-down space has only 95 cm (37.40") of clear space from the air duct at the rear to the seat in front of the wheelchair tie-down. CCD indicates that this is 25 cm (9.84") less than the "wheelchair footprint" provided in the Rail Code section 1.1.1, and approximately 5 cm (1.97") less than the estimated distance relied upon by CCD's experts Ms. Ringaert, Mr. Harding and Stephan Ryan when they provided their reports for inclusion in one of CCD's submissions. CCD indicates that their opinions on the inaccessibility of the wheelchair tie-down space need to be adjusted to take into account this information.

CCD submits that the clear floor space for the wheelchair tie-down in the economy car adjacent to the service car is inadequate to accommodate many wheelchairs and scooters and that it cannot be called a tie-down if many, or virtually all wheelchairs cannot access it. CCD further submits that the wheelchair tie-down mechanism is not centered within the clear floor space, thereby reducing the effective width of the wheelchair tie-down area.

CCD states that, from its perspective, the tie-down space was created as an afterthought on the basis that the dimensions of the wheelchair tie-down space are the result of the decision to remove the single seat in the last row on the double-seat side in the coach car. CCD submits that it is clear that no careful examination was made of the needs of persons with disabilities when deciding on the size of the tie-down space. In support of its position, CCD refers to VIA's statement that VIA, "... is not familiar with the various dimensions of all personal wheelchairs and scooters, but suffice it to say that any personal wheelchair or scooter with a dimension greater than those provided for the accessible suite doors and tie-down area, would be precluded from using these areas."

CCD explains that VIA's existing cars were retrofitted to provide accessible wheelchair tie-downs and to make washrooms wheelchair accessible. CCD submits that comparable levels of modification to the Renaissance Cars are required to address the issues CCD raises in this application. CCD submits that the changes VIA made to the Renaissance Cars following the Agency's September 2001 inspection support CCD's position that the removal of the obstacles that exist would not place an undue burden on VIA.

CCD requests that the Agency direct VIA to provide a wheelchair tie-down with clear space that will accommodate the length of the Personal Wheelchair footprint specified in the Rail Code, "provided the person can pull their chair directly into the space". CCD submits, however, that if the space will be located in an alcove, it should be comparable in length to the space in the existing VIA-1 cars, that is 184.6 cm (72.68"), which would allow front or rear-drive wheelchairs to enter in either direction and be positioned in a front facing position. CCD submits that the foregoing could be provided by recommissioning the third washroom and removing one of the inaccessible washrooms at the wheelchair tie-down end of the coach car.

VIA

VIA submits that the clear floor space of the wheelchair tie-down in the Renaissance coach car was provided in its document, Accessibility Program - Renaissance Train. VIA comments that, "If the wheelchair is the appropriate size, it will fit the space".

Additionally, VIA states that it is not familiar with the various dimensions of all personal wheelchairs and scooters but that "...any personal wheelchair or scooter with a dimension greater than those provided for the accessible suite doors and wheelchair tie-down area would be precluded from using these areas."

Transport 2000 Canada Inc.

Prior to the modifications made by VIA to provide wheelchair tie-down spaces in the economy coach cars, Transport 2000 submitted that at least one of the coach cars in each Inter-City Corridor set should have a single seat near the door leading to the service car removed to provide a wheelchair tie-down space of 80 cm by 120 cm (31.5" x 47.24"), which it notes would be larger than "the norm of 75 cm by 120 cm (29.53"x 47.24")".

Analysis

Obstacle

Consistent with the Agency's decision to use the Personal Wheelchair as the standard for its assessment of the accessibility of the Renaissance Cars and with the Agency's views on the importance of a person's own wheelchair to a person, the Agency is of the opinion that it is important that persons who use wheelchairs have the option of remaining in their wheelchairs by availing themselves of a wheelchair tie-down, which is defined in the Rail Code as a space to accommodate an occupied Personal Wheelchair and a service animal.

The Agency notes that, in the various reports prepared on behalf of CCD by the mobility specialists, "clear floor space" is needed for a wheelchair tie-down and that this means the space that is not under a seat or obstructed by an obstacle.

The Agency notes that CCD presented evidence that if a person using a wheelchair can wheel straight into a wheelchair tie-down, then a clear floor space that is the size of the wheelchair's 'footprint', (in the case of a Personal Wheelchair, that measures 75 cm by 120 cm or 29.53" by 47.24"), will accommodate a person using a Personal Wheelchair. It is, therefore, apparent that, whether a wheelchair tie-down will accommodate a person using a wheelchair, depends on both the dimensions of the wheelchair tie-down and how it can be accessed.

In terms of the dimensions of a wheelchair tie-down, the Agency is of the opinion that, in order to accommodate a person in a Personal Wheelchair, the clear floor space of a wheelchair tie-down must be a minimum of 75 cm (29.53") in width and 120 cm (47.24") in length, which is consistent with the space required for a stationary Personal Wheelchair and its occupant, as reflected in the Rail Code. The Agency is further of the opinion that, in order to accommodate both a person in a Personal Wheelchair and a service animal, the dimensions of the wheelchair tie-down must necessarily be greater than these dimensions.

With respect to the space provided in the economy coach car wheelchair tie-down, the Agency notes that clear floor space provided in the wheelchair tie-down, as measured from the bulkhead wall to the supporting structure of the double seats in front of the wheelchair tie-down is affected by the presence of the air duct against the bulkhead wall and the fact that the double seats overhang the wheelchair tie-down space due to the angulation of the seat backs. In this way, the clear floor space appears to be 95 cm (37.40") in length as measured from the air duct to a vertical line drawn from the top of the double seat supporting structure to the floor. However, the Agency acknowledges that some space under the overhanging seat backs may be available for use.

Given that the length of the floor space that is between the air duct and the base of the supporting structure for the double seats in front of the wheelchair tie-down is 150 cm (59.06"), and given that the length of the floor space under the double seat is 34 cm (13.38"), this potential additional usable space under the overhanging seat backs measures 21 cm (8.27") [(150 cm - 95 cm) - 34 cm] in length. The calculation in inches is [(59.06" - 37.40") - 13.38"]. However, even if this additional space were usable by a person occupying the wheelchair tie-down, it is still apparent that the maximum length of the wheelchair tie-down area is already 4 cm (1.57") less [120 cm - (95 cm 21 cm)] than the 120 cm (47.24") specified as the minimum required length of a clear floor area in order to accommodate a Personal Wheelchair.

In terms of what floor space might be required to accommodate a service animal, the Agency notes that, while the Rail Code provides that passenger seats should provide enough floor space in order for a service animal to lie down, the Code does not specify what amount of space is needed. The Agency further notes that the CSA Barrier-Free Design Standard offers no guidance in this regard. However, the Agency is of the opinion that guidance as to what additional floor space might be needed in order to accommodate a service animal can be obtained through consideration with the community of persons with disabilities.

In light of the foregoing, the Agency is of the opinion that the clear floor space of the wheelchair tie-down area is inadequate to accommodate a person in a stationary Personal Wheelchair. Additionally, the Agency finds that this space will necessarily not accommodate both a person in a stationary Personal Wheelchair and a service animal.

In view of the foregoing, the Agency finds that the inadequate clear floor space of the wheelchair tie-down constitutes an obstacle to the mobility of persons using Personal Wheelchairs, including those accompanied by a service animal.

ii) Manoeuvring space in the wheelchair tie-down area to enter and exit the wheelchair tie-down

Positions of parties

CCD

CCD notes that the CSA Barrier-Free Design Standard mandates a minimum clear turning space of 150 cm (59.06") and a minimum clear floor area of 75 cm by 120 cm (29.53" x 47.24"), without addressing means of accessing the wheelchair tie-down.

In his report, Mr. Woollam asserts that the wheelchair tie-down area is totally inadequate and reflects no consideration for how a person is supposed to manoeuvre his/her wheelchair into a wheelchair tie-down area. Mr. Woollam further asserts that neither a person in a "personal wheelchair" nor a person in a substantially smaller wheelchair could manoeuvre into the required position.

CCD states that just as when parallel parking a car, the positioning of the turning wheels of the wheelchair determines whether it is better to back in or go into the space moving forward. In this regard, Mr. Harding submits that it is much more efficient in terms of space requirements for rear-drive power and manual wheelchairs to back into a space off a side aisle but that this does not appear to be possible in the Renaissance coach cars such that front entry only is possible. Mr. Harding states that this poses less of a problem for persons using front-drive wheelchairs. Mr. Harding notes, however, that front-drive wheelchairs are less common than rear-drive wheelchairs, and submits that the latter require far more manoeuvring space when entering a space while driving forward. Mr. Harding explains that the amount of additional space required will depend on several things, including the relative fore/aft position of the drive wheels, the degree of protrusion of the footrests and the amount of space between the wheelchair in the wheelchair tie-down and the wall.

Mr. Harding states that, in general, the least amount of manoeuvring space is required when the drive wheels are leading the wheelchair into the space, whether driving a rear-drive wheelchair backward or driving a front-drive wheelchair forward. Mr. Harding advises that the additional space required for this approach appears to be about 12" (30.48 cm) over and above the wheelchair's 'footprint', give or take a few inches and depending on the chair-specific features. However, Mr. Harding advises that when manoeuvring a rear-drive wheelchair forward or a front-drive wheelchair backward, additional space is required. Mr. Harding notes that these manoeuvres were tried with a small sample of commonly-used wheelchairs and that the additional manoeuvring space that was required was between 24" and 36" (60.96 cm and 91.44 cm).

Mr. Harding concludes that the space in the alcove in the Renaissance coach car would need to be a minimum of 60.96 cm (24") longer than the wheelchair's "footprint" in order for a person to be able to manoeuvre into the wheelchair tie-down space. CCD comments that Mr. Harding's findings are comparable to what is set out in the literature, which is, that it takes approximately an additional 30.48 cm (12") of clear space over and above the wheelchair 'footprint' if the wheelchair tie-down is entered "in the proper way" and that, if the wheelchair tie-down is entered "in the wrong way", an additional 60.96 cm to 91.44 cm (24" to 36") is required in order to get into the tie-down. Finally, CCD submits that all of its experts agree that a wheelchair could only move into the wheelchair tie-down space moving forward because there is no room to back-up a wheelchair in the coach car.

In her report, Ms. McInnis states that, as set out in the Ontario Building Code, a clear floor space of at least 90 cm wide by 152.5 cm long (35.43" x 60.04") is needed to allow a wheelchair to enter a wheelchair tie-down. Ms. McInnis notes that the CSA standards do not specify how clearances required for a side approach to a seating area are derived but that they specify that the minimum clear width required for a typical manual wheelchair is 75 cm (29.53"). In this regard, Ms. McInnis comments that although the space provided in the Renaissance Cars to secure a wheelchair to the wheelchair tie-down is not specified by VIA, it is clearly less than the CSA Barrier-Free Design Standard, thereby creating a potential safety hazard and rendering the wheelchair tie-down "unusable".

In his report, Mr. Ross submits that the wheelchair tie-down area will not accommodate most electric wheelchairs and scooters because the space is too limited to manoeuvre a wheelchair in a forward-facing position. Mr. Ross further submits that there needs to be at least a 152.4 cm by 152.4 cm (60" x 60") space in this area.

In his report, Mr. Ryan asserts that given the present configuration of the wheelchair tie-down, it would seem that only a wheelchair that can move sideways would be able to be easily manoeuvred into the area. Mr. Ryan advises that until the recent introduction of the "Rocket", a powered wheelchair, no other powered wheelchairs on the market could move sideways. As a result, Mr. Ryan estimates that almost all adult wheelchair users would have great difficulty independently manipulating their wheelchairs into proper position in the wheelchair tie-down area. Additionally, Mr. Ryan states that he does not see provision for VIA staff to lift occupied wheelchairs into position and that, consequently, it is unlikely that even the most adept adult manual wheelchair user could enter the tie-down area and be positioned in the forward facing position as shown in the diagram provided by VIA.

Ms. Ringaert submits in her report that a tie-down in an alcove is a poor design feature in that the space does not account for how a person is to manoeuvre to get into such a space. Ms. Ringaert explains that, because a wheelchair does not move sideways, a person would have to drive forward into the space or parallel park as one does a car. Ms. Ringaert submits that in order to accomplish this, the space would have to be larger. Ms. Ringaert further submits that a person should not have to manoeuvre into this space but should be able to pull directly into the tie-down area.

In her report, Mrs. Lemieux-Brassard states that the wheelchair tie-down area would not accommodate her wheelchair, which she notes is 69.21 cm (27.25") wide at the level of the armrests. She asserts that it will be necessary for a person using a wheelchair to back out of the wheelchair tie-down area because there is no place in the coach car in which to turn around. Ms. Lemieux-Brassard submits that this is "dangerous and demeaning." In this regard, Ms. Ringaert submits that, with the noise of the train, backing out of the wheelchair tie-down area could potentially be dangerous for other passengers in the case of persons with head and hand controls who often cannot turn to look behind them and would have difficulty hearing whether there is a passenger behind them.

Mr. Harding submits in his report that turning diameters vary dramatically depending on the model of the mobility device. Mr. Harding states that scooters require a radius of approximately 100 percent of their diagonal lengths in order to turn and that electric wheelchairs that are 120 cm (47.24") long would require, on average, a radius of between 80 cm (31.5") and 120 cm (47.24"), depending on the model. Mr. Harding submits that it is obvious that a turning diameter of 150 cm (59.06") would preclude many wheelchairs from turning without repeated backward and forward manoeuvres.

Mr. Harding states that based on his knowledge of wheelchairs in common use in Canada, it is his opinion that the wheelchair tie-down area, as currently configured, would preclude use by a majority of adult wheelchair users. More specifically, Mr. Harding states that the Renaissance Cars, with only 100 cm (39.37") of clear space, will preclude a majority of adult power wheelchair users from manoeuvring into the wheelchair tie-down area. Finally, Mr. Harding submits that wheelchair users attempting to turn around in the coach car could only do so with considerable difficulty involving multiple turns and requiring a high degree of skill and endurance and that many users of typical wheelchairs could not turn in this space and would, therefore, be required to perform a potentially hazardous manoeuvre by backing into or out of the area.

CCD submits that while the experts differed as to whether the turning areas in the Renaissance Cars would preclude "many users of typical chairs" or "most" users of wheelchairs or scooters from being able to successfully turn, it is clear that a very high percentage of persons who use wheelchairs and scooters would have to exit the coach car while travelling in reverse. CCD submits that this would be very difficult if done on a stable surface and without passengers coming and going but that, on a busy moving VIA train, it would pose dangers for both the person with the disability and the other passengers.

CCD comments that the Renaissance Cars do not even appear to comply with VIA's accessibility guidelines for passenger railcars as these guidelines provide that every train should have at least one car with a designated place for a passenger in his or her wheelchair and that this space should be large enough to allow for "a complete 360-degree turn (1.4 m)".

Given the continued existence of the third washroom located at the front of the coach car and given the obstacles presented by such features as the "severely undersized" wheelchair tie-down space and the obstacle to mobility caused by having a coach car in which most persons in wheelchairs could not turn their wheelchair and exit moving in the forward direction, CCD requests that the Agency direct VIA to provide, among other things, a "minimum clear turning diameter" in the wheelchair accessible coach car, as prescribed in the Rail Code.

CCD submits that the foregoing could be provided by recommissioning the vestibule washroom and removing one of the inaccessible washrooms at the wheelchair tie-down end of the coach car.

VIA

VIA states that prior to the second inspection being conducted, the turning space available at the wheelchair tie-down location was 127 cm (50") in diameter and was configured so that a wheelchair could be manoeuvred and turned.

Analysis

Obstacle

In the preceding analysis, the Agency recognized the importance to persons with disabilities of being able to remain in their own wheelchairs while travelling. Inasmuch as this requires the provision of a wheelchair tie-down, the Agency is of the opinion that persons with disabilities should have easy access to the wheelchair tie-down.

Regarding the space needed to access a wheelchair tie-down, evidence has been presented that a person using a wheelchair is required to enter the wheelchair tie-down by making a sharp left turn upon clearing the bulkhead door. The Agency notes CCD's submission that, because the wheelchair tie-down is in an alcove and because few wheelchairs could move laterally into this area, the majority of persons using wheelchairs would have to drive forward into the space or parallel park the wheelchair, as is done when parking a car. In this regard, it is apparent that because the clear length of the wheelchair tie-down is, as a minimum, only 95 cm (37.40") and, as a maximum, only 116 cm (45.67") if the 21 centimetres of additional space under the overhanging seats is included, both of which are less than the minimum clear floor area required to accommodate a stationary Personal Wheelchair, the length of the wheelchair tie-down space is inadequate for persons using Personal Wheelchairs to enter the wheelchair tie-down using either approach.

While the Agency notes that the evidence presented by CCD indicates that the amount of additional space required to manoeuvre a wheelchair into a wheelchair tie-down that is in an alcove varies, depending on whether the wheelchair is rear-drive or front-drive and whether the person backs into the space or manoeuvres into it while facing forward, it is apparent that additional manoeuvring space is required.

Furthermore, as noted in the discussion on the doors in the "accessible suite" which follows, the Agency recognizes that travel can be more difficult and possibly dangerous for persons using wheelchairs who must travel a significant distance in reverse, especially when narrow doorways are present along the route. Consequently, adequate turning diameter is a necessary feature in order to permit easy access and egress to areas, such as wheelchair tie-downs, which are essential to the accessible travel by rail of persons using wheelchairs.

In the Renaissance coach cars, it is apparent that a person occupying the wheelchair tie-down needs to be able to turn his or her wheelchair around in order to be able to exit the coach car while facing forward. However, the evidence presented by CCD is that a large proportion of persons using wheelchairs and scooters would be required, as a result of the inadequacy of the turning diameter in the wheelchair tie-down area, to exit the economy coach car while travelling in reverse through the door in the bulkhead, the aisle between the two washrooms, the gangway, and the vestibule. Given this route and the distance (Seven metres, as reflected in the section of the Decision entitled "Coach car washrooms and location of the 'accessible washroom'".) between the wheelchair tie-down and the "accessible washroom", the Agency is of the opinion that to expect a person using a wheelchair to travel in reverse under these circumstances does not meet the principle of safe and easy access. In this regard, as discussed in the "Width of bulkhead door opening" section, the Agency found that the bulkhead door constitutes an obstacle to the mobility of persons who use Personal Wheelchairs. Additionally, as discussed in the "Aisle between the two washrooms in the economy coach car" section, the Agency found that the aisle that is between the two washrooms in the coach car constitutes an obstacle to the mobility of persons who use Personal Wheelchairs. Therefore, as a result of the lack of an adequate turning diameter in the wheelchair tie-down area to accommodate a Personal Wheelchair, a person using a Personal Wheelchair would be required to exit the wheelchair tie-down area while travelling in reverse through two areas determined to constitute obstacles to the mobility of persons using Personal Wheelchairs.

The Agency notes that VIA advised that the turning diameter available in the wheelchair tie-down area is 127 cm (50") in diameter. Therefore, it is apparent that the wheelchair tie-down area does not provide a clear turning diameter of 150 cm (59.06"), as specified in the Rail Code for a Personal Wheelchair.

In view of the foregoing, the Agency finds that the amount of manoeuvring space in the wheelchair tie-down area, including the lack of a 150 cm (59.06") turning diameter, constitutes an obstacle to the mobility of persons using Personal Wheelchairs.

iii) Space for attendants

Positions of parties

CCD

Mr. Boyd submits in his report that the coach car should also provide seating for other family members or attendants in the area adjacent to the wheelchair tie-down.

VIA

VIA did not file any submissions regarding this issue.

Analysis

Obstacle

The Agency notes that there is a certain proportion of persons who use wheelchairs who are not self-reliant and must travel with a personal care attendant or other person who can meet their personal needs, such as assisting with meals, administering medication, and providing assistance with using the washroom.

The Agency is of the opinion that it is essential that an attendant who is assisting a person occupying a wheelchair tie-down be able to sit either beside or facing the person with a disability to whom he or she is providing assistance. In this regard, the Agency is of the opinion that if an attendant is not seated either beside or facing the person with a disability or is required to stand beside the person with a disability in order to attend to his or her personal needs, this has a negative impact on the dignity and privacy of the person with a disability and poses a risk to the safety of the attendant and the person with a disability.

In view of the foregoing, the Agency finds that the lack of seating space for an attendant either beside or facing the wheelchair tie-down constitutes an obstacle to the mobility of persons using Personal Wheelchairs.

Undueness of the obstacles related to space within the wheelchair tie-down

The Agency has determined that the following three aspects of the space provided within the wheelchair tie-down area constitute obstacles to the mobility of persons using Personal Wheelchairs:

the inadequate clear floor space of the wheelchair tie-down to accommodate a stationary Personal Wheelchair and a service animal;
the inadequate manoeuvring space, including the lack of a 150 cm (59.06") turning diameter in the wheelchair tie-down area; and,
the lack of seating space for an attendant either beside or facing the wheelchair tie-down.

As discussed in the preceding obstacle analysis, the Agency recognizes, as important principles of accessible travel, that persons who use wheelchairs should have the option of remaining in their own wheelchair and that they should have access, using their own wheelchair, to features and amenities designed to meet their needs.

The foregoing principles reflect the fact that many wheelchairs are customized to meet a person's specific needs and that depriving a person of his or her own wheelchair may prevent that person from accessing those areas containing fixtures and amenities that are specifically designed to meet their needs as well as detract from that person's independence and compromise his/her safety and security. As such, for many persons who use wheelchairs, a wheelchair tie-down is essential in that it permits them to remain in their own wheelchair.

The difficulties posed to persons using Personal Wheelchairs by the above-noted obstacles in the wheelchair tie-down area have been detailed in the Agency's obstacle analysis. The Agency is of the opinion that these difficulties are significant enough that they can compromise the ability of persons using Personal Wheelchairs to travel on the Renaissance trains.

Having said this, the Agency also recognizes that there are structural and economic implications to VIA of addressing these obstacles, which must be weighed in the Agency's assessment of the undueness of the obstacles. The following presents the positions of parties and the Agency's analysis of these positions on the structural and economic implications of remedying the obstacles found to exist with respect to the space available in the wheelchair tie-down area.

Structural factors

VIA

VIA submits that the wheelchair tie-down location can only be expanded if the number of passenger seats is reduced. VIA explains that it is not feasible to rotate and lower seats in front of the wheelchair tie-down area. VIA notes that the seats on the Renaissance trains are very different from those in the LRC fleet, which permit rotation and lowering of seats. VIA explains that the seat structure on the Renaissance trains is cantilevered and placed on an elevated plinth and states that this design makes it infeasible to rotate and lower the seats in front of the wheelchair tie-down location. VIA explains that the elevated seating is designed such that the space under each seat provides 3 cubic feet of baggage storage space and, therefore, lowering seats without modifying the overhead "luggage arrangement" would result in the loss of baggage storage in each coach car which could not be relocated elsewhere on the train.

VIA further clarifies that the single removable seat on the double seat side in the VIA-1 cars on the Renaissance Corridor day train has been lowered only to provide space for a service animal as required by the Rail Code and is not intended to be removed for passengers who use wheelchairs. VIA states that, apart from this single seat on the double seat side in the VIA-1 cars operating in the Corridor and for eastern services, there will not be any removable seats in other VIA-1 cars.

VIA submits that the option of installing a drop-down or temporary seat immediately adjacent to the wheelchair tie-down is not feasible, as there is insufficient space at this location. VIA states that regardless of space availability, a temporary loose seat, or one that would encroach into the passenger aisle, is not permissible on any of VIA's trains for safety reasons.

CCD

Regarding the possibility of using removable seats, CCD submits that a removable or folding seat installed in place of the single seat in the last row across the aisle from the wheelchair tie-down would permit the wheelchair tie-down turning area to be expanded, if needed. CCD further submits that this would also permit wheelchairs to back into the wheelchair tie-down space. Finally, CCD submits that rotatable seats could be used and represent another way of increasing the size of the wheelchair tie-down space "without interfering with revenue". CCD notes that the possibility of using folding, removable or rotatable seating was not considered by VIA. CCD explains that folding seats are used in the United States and refers to the Americans with Disabilities Act.

CCD submits that, if the third washroom in the front of the coach car is left as an inaccessible washroom available for passengers who do not require wheelchair access and removed one of the two rear inaccessible washrooms, the following would be possible:

a person using a wheelchair could pull into the tie-down that would be outside of the Crash Energy Management Zone;
the remaining washroom at the rear of the coach car could be widened to make it wheelchair-accessible;
the bulkhead wall containing the door to the wheelchair tie-down, which does not permit a Personal Wheelchair as defined in the Rail Code to get through the space, could be removed; and
the turning area could be increased such that, instead of having to back out of the coach car or back into the coach car in order to exit moving forward, it would be possible to turn around in the coach car.

In a later submission, CCD notes that the third washroom in the vestibule of the coach car has not, in fact, been removed but merely decommissioned. CCD further notes that a VIA representative advised that the washroom facilities and interior finish are still in place and that the area has simply been closed off. CCD notes that VIA had originally indicated that this area would be used for an oversized luggage locker or possibly for a vending machine. CCD submits that it is logical that if two washrooms are considered necessary for the coach car, the third washroom should be recommissioned so that one washroom can be provided at each end of the car and the washroom that is directly behind the wheelchair tie-down can be removed in order to provide better wheelchair access. Finally, CCD comments that not all of the space made available if such modifications were undertaken would be needed such that any remaining space could be used for a luggage locker.

CCD submits that the wheelchair tie-down area on the Renaissance trains is inferior in many respects to that offered in VIA's LRC VIA-1 cars. CCD submits that the wheelchair tie-down location in all coach cars should be comparable in dimensions to the wheelchair tie-down location in the current VIA-1 cars and it comments that there were no structural limitations preventing VIA from creating a suitable wheelchair tie-down area in the LRC VIA-1 cars when it retrofitted them. CCD comments that if these changes were made, the Renaissance trains would still present persons with disabilities with many serious obstacles, but it could at least be said that those who can travel on existing VIA-1 cars will not be denied access to VIA's next generation of trains. Mr. Harding, notes, however, that it is his understanding that the wheelchair tie-downs in the current VIA cars are 162.6 cm (64.01") in area and submits that, even with this amount of space, persons who are forced to manoeuvre a rear-wheel-drive chair forward or a front-wheel-drive chair backward, will find the space insufficient.

Mr. Woollam submits that, in order to facilitate manoeuvring of a wheelchair, as a minimum and, in order to meet the guidelines of the Rail Code and the CSA Barrier-Free-Design Standard, the row of seats in front of the wheelchair tie-down would have to be removed to ensure a clear floor area of 89 cm by 153 cm (35.04" by 60.24"). Mr. Woollam notes, however, that a VIA representative advised that the second row of seats could not be removed because of heating and return air ducts. Mr. Woollam submits that the floor heating elements are enclosed in the wall at seat base level and there are probably no return air ducts in the framework below the seat bases, given that the luggage storage space is provided in a sloping recess extending to the main floor beneath the seats such that there is no continuous void between the main floor and the seat base through which a duct could pass. Mr. Woollam submits that the balance of the heating and all the air conditioning run through overhead ducts and would be unaffected by the removal of seats.

Economic factors

VIA

VIA submits that the wheelchair tie-down location could only be expanded if the number of passenger seats was reduced, which would represent a loss in revenue of $360,360 per year for the seven Corridor Day trains. VIA notes that this is based on an estimated average fare of $55 and 2 seats (1 seat pair) being removed from the 2 leading coach cars in each of the 7 Corridor Day train consists.

VIA further advises that, in calculating the estimated revenue loss, it assumed that:

each car would make 1 morning trip and 1 afternoon trip per day, 6 days per week (312 days per year) on average;
morning trips would be sold out 15 percent of the time;
afternoon trips would be sold out 60 percent of the time; and
4) the average fare would be $55 per trip.

VIA submits the following calculation for the estimated loss in revenues:

[(2 seats x 1 trip x 0.15) (2 seats x 1 trip x 0.60)] x $55 x 312 trips

= $25,740 per car year multiplied by 7 trains x 2 cars per train = $360,360

VIA states that it has commented on the actual usage of VIA trains by persons who use wheelchairs and submits that the extra wheelchair tie-down space is not needed. VIA further submits that an annual loss of $360,360 is an unreasonable burden. VIA adds that there would also be costs incurred for the removal of the seats and the resulting design and reconstruction and notes that the loss in revenues would be greater if the changes were imposed system-wide. Finally, VIA states that it has obligations to provide service to all Canadians and that it can only do so if the costs are kept as low as possible but that it is willing to spend reasonable amounts of money, having regard to its desire and obligation to meet the needs of passengers with disabilities.

CCD

CCD notes that the possibility of using folding, removable or rotatable seating was not considered in VIA's estimate of lost revenues. CCD remarks that VIA is using a removable seat in the wheelchair tie-down area of the second coach car and that this would have been a more reasonable assumption to have used for estimating the cost of expanding the area for the wheelchair tie-down in this coach car.

CCD submits that VIA has not costed either removing the second inaccessible washroom in the coach car or, alternatively, restoring it to where it was originally located in the front of the coach car.

CCD refers to VIA's statement that removing a total of twenty-eight seats will cost VIA $360,360 in lost revenues annually, which CCD equates to approximately $13,000 per seat. CCD questions whether VIA will acknowledge that, for each seat it does not have available for passengers who use wheelchairs, there is a comparable cost involved. Mr. Woollam comments that VIA would object to the removal of additional seats because it would further reduce "an already diminished passenger capacity because of the equipment's diminutive size."

Further, with respect to VIA's estimate of revenue loss, CCD notes that VIA's actual load factors are not cited and states that it is not clear to what extent the assumptions used by VIA are realistic. CCD asserts that if trains are consistently full, adding a coach car to the train consist would appear to be "the most prudent response". CCD further asserts that the load factors outside the Corridor are low and it would not be appropriate to include amounts for seats that would otherwise have been vacant.

With respect to the breakdown of the estimated revenue loss attributable to the removal of the two seats in front of the tie-down which was provided by VIA, CCD submits that this figure includes not only the twenty rail cars containing these tie-downs but also includes the twenty other economy coach cars where there was to have been a removable seat. CCD argues that it is unfair to include a figure for these twenty coach cars on the basis that, firstly, two seats would not be removed in front of a seat that is installed and is removable and, secondly and more importantly, this space is not going to be used by very many people with disabilities if they have any option because there is no wheelchair-accessible washroom available for people in that particular tie-down location.

Finally, CCD submits that when considering the inadequate size of the wheelchair tie-down area, the time required for a person using a wheelchair to manoeuvre into and out of the area may cause delays in the operation of the Renaissance train. CCD further submits that if other passengers are required to wait while a person using a wheelchair manoeuvres into the tight space, this will translate into interference with the paths of travel of the other passengers.

Analysis of structural and economic factors

The Agency recognizes that there may be several ways to increase the clear floor space of the wheelchair tie-down in order to accommodate a Personal Wheelchair and service animal and in order to provide a turning diameter of at least 150 cm (59.06") so that a person using a Personal Wheelchair can turn his or her wheelchair around in the wheelchair tie-down area. However, based on the evidence on file, it is apparent that one of the most obvious ways of accomplishing this is to remove some existing seats in front of and to the side of the wheelchair tie-down across the aisle where the single seat in the last row is located and to replace these with removable or folding seats.

Given that VIA has already installed removable seats on the Renaissance trains, the Agency finds that the evidence on file demonstrates that it is feasible for VIA to install removable seats in the coach cars containing the wheelchair tie-downs. The Agency further finds that there is no evidence to indicate that it would not also be feasible for VIA to install folding seats in the coach cars containing the wheelchair tie-downs.

Regarding the installation of a removable or folding seat to accommodate an attendant for a person occupying the wheelchair tie-down, VIA has stated that it is not feasible to install a drop-down or temporary seat immediately adjacent to the wheelchair tie-down as there is insufficient space to do so. VIA has also stated that, regardless of space availability, a temporary, loose seat or one that would encroach into the passenger aisle, is not permissible on any of VIA's trains for safety reasons. CCD, on the other hand, asserted that removable seating would not have to be loose and would not encroach into the passenger aisle as alleged by VIA.

Regarding the type of seat to be used for an attendant, the Agency finds that while a loose seat may raise safety issues, VIA has not provided any evidence to indicate that a removable seat such as that already used in the coach cars could not be used. In terms of the space needed to accommodate such a removable or folding seat, the Agency is of the opinion that, in enlarging the wheelchair tie-down area in order to address the obstacles pertaining to the length of clear floor space and the lack of a 150-centimetre (59.06") turning diameter, VIA could ensure that the modified area allows for a removable or folding seat for an attendant which does not encroach into the passenger aisle.

If VIA were to choose to enlarge the clear floor space and turning diameter of the wheelchair tie-down area by removing some existing seats in front of and/or to the side of the wheelchair tie-down across the aisle where the single seat in the last row is located and by replacing these with removable or folding seats, the Agency finds that there is no evidence to indicate that the associated modifications would affect the exterior walls and/or the structural strength of the coach car nor would it affect the Crash Energy Management Zone.

Furthermore, given that the modifications required under this approach would largely pertain to the removal of some existing seats and the installation of an alternative style of seat, the Agency is of the opinion that there is no evidence to indicate that there are any significant structural impediments to addressing the obstacles pertaining to the clear floor space and the manoeuvring space within the wheelchair tie-down area and to the lack of a seat to accommodate an attendant beside or facing a person occupying the wheelchair tie-down. In this regard, the Agency notes that VIA has already removed the bases of some of the original seats in the VIA-1 cars in order to accommodate persons travelling with service animals. Additionally, while the Agency recognizes that some baggage storage space may be lost due to the removal of seats and the installation of an alternative style of seat, the Agency is of the opinion that a minimal amount of baggage storage space would be lost when compared to the total baggage storage space available in the coach car. Furthermore, the Agency is of the opinion that it may be possible to compensate for the lost baggage storage space by modifying the overhead luggage space.

Finally, the Agency notes CCD's assertions regarding the obstacles in the wheelchair tie-down area that could be addressed by recommissioning the third washroom that is located at the front end of the coach and by removing one of the two rear washrooms. Based on the fact that the third washroom remains in place and given that the modifications that would be required under such an approach would entail modifications affecting interior walls as opposed to exterior walls or the Crash Energy Management Zone, the Agency finds that there is no evidence to indicate that there are any significant structural impediments to addressing the obstacles pertaining to the clear floor space and the manoeuvring space within the wheelchair tie-down area related to CCD's proposed method of remedying the obstacles in the wheelchair tie-down.

With respect to the economic implications of remedying the obstacles related to space within the wheelchair tie-down, VIA submitted that the wheelchair tie-down area could only be expanded if passenger seats are removed, resulting in an annual loss in revenues of $360,360 for the seven Corridor Day trains. VIA also submitted that there would be a cost for the removal of seats and costs associated with redesign and reconstruction. However, while the Agency acknowledges that the wheelchair tie-down area could be expanded by permanently removing seats, as indicated above, the Agency is of the opinion that the evidence on file indicates that there are no significant structural impediments to addressing the obstacles presented by the wheelchair tie-down by installing removable or folding seats or by removing both the bulkhead wall and washroom that are directly behind the wheelchair tie-down area. Additionally, under the latter approach, there would not be the loss in revenue that would result from removing passenger seats. Furthermore, the Agency notes CCD's submission that this approach would also address the obstacles presented by the bulkhead door and by the aisle that is between the two washrooms at the end of the coach car. The Agency is of the opinion that if VIA were to enlarge the wheelchair tie-down by removing the bulkhead wall and the washroom that are directly behind it, there would be obvious economic advantages to be gained from concurrently addressing the obstacles presented by the bulkhead door and the aisle between the two washrooms.

In light of the foregoing, the Agency's preliminary finding is that the obstacles posed by the space in the wheelchair tie-down in the economy coach cars constitute undue obstacles to the mobility of persons who use Personal Wheelchairs.

b) Width of bulkhead door opening

Positions of parties

CCD

CCD notes that the Rail Code requires that the location of the wheelchair tie-down permit easy access to wheelchair-accessible doorways and a wheelchair-accessible washroom.

CCD expresses a concern regarding the bulkhead door in the economy coach car, which it notes as having a width of 74 cm (29.13"). CCD notes that this door is narrower than the definition provided in the Rail Code of Personal Wheelchair and is, therefore, inaccessible to a person who uses a Personal Wheelchair.

In his report, Mr. Harding states that it would appear that persons must travel through a narrow bulkhead door and turn directly into the wheelchair tie-down space. Mr. Harding submits that this would require that, for many wheelchairs, the turn begins before the door has been cleared and this, in turn, would require that the door be wider than would otherwise be required. CCD notes that the diagram filed by VIA shows that a person using a wheelchair would be required to do a "hard" 90-degree turn into the tie-down space. CCD submits that, "...there is a 74-centimetre width in that doorway and the chair, in order to have any chance at all of going into the wheelchair tie-down space, must begin the turn going through the doorway."

Mr. Woollam points out that the 74-cm wide (29.13") bulkhead door opening is narrower than the CTA-defined minimum footprint for a Personal Wheelchair (120 cm x 75 cm) and 7 cm (2.75") narrower than the minimum corridor dimension specified in the CSA Barrier-Free Design Standard.

Ms. Ringaert states in her report that "I feel that the person should not have to manoeuvre into the space but should pull directly into the tie-down area." It is CCD's opinion that the bulkhead door is far from being a "wheelchair accessible doorway" as that term is defined in Appendix A to the Rail Code.

Given the continued existence of the third washroom located at the front of the coach car and given the various obstacles in the wheelchair tie-down area, CCD requests that the Agency direct VIA to make, among other things, all doors in the portion of the coach car intended to be used by persons in wheelchairs, "wheelchair accessible" as that term is defined in Appendix A of the Rail Code.

CCD submits that the foregoing could be provided by recommissioning the vestibule washroom and removing one of the inaccessible washrooms at the wheelchair tie-down end of the coach car.

CCD states that it regards the widening of the bulkhead door opening, like that of the doors to the sleeper unit and washroom in the "accessible suite", to be feasible. In this regard, Mr. Woollam submits that the opening in the bulkhead is outside the Crash Energy Management Zone and could be modified with minimal engineering, modest cost and without any compromise to safety.

VIA

VIA advises that it is not familiar with the various dimensions of all personal wheelchairs and scooters and comments, "...suffice it to say that any personal wheelchair or scooter with a dimension greater than those provided for the accessible suite doors and wheelchair tie-down area would be precluded from using these areas."

VIA submits that the widening of the bulkhead door opening would require that the aisle that is between the two washrooms in the coach car be widened to 81 cm (32"), which it characterizes as a major alteration to the coach car.

Analysis

Obstacle

As previously noted, the Agency is of the opinion that one important aspect of the principle of independence is the recognition of the importance of a person's own mobility aid to his or her independence, dignity, safety and comfort. For example, in the context of this application, rail cars have provided an important opportunity within the transportation network for a person to be able to choose to remain in his/her own wheelchair and the Agency is of the opinion that it is important to preserve this aspect of rail travel wherever possible. As such, where there are features specifically designed to meet the needs of persons with disabilities who wish to remain in their own wheelchair, such as those contained in the wheelchair tie-down, it is obviously essential that persons with disabilities must be capable of accessing these features in their own wheelchair. In this way, for example, doorways need to provide sufficient space to allow a person using his/her own wheelchair to manoeuvre safely and easily through them. To this end, the Agency has also determined that it will assess the accessibility of the Renaissance Cars using the standard of the Personal Wheelchair as defined in the Rail Code.

The Agency notes that the foregoing is consistent with the Rail Code, which provides that doorways to areas that are to be wheelchair-accessible should be wide enough to permit a person in a Personal Wheelchair to access those areas. Thus, the bulkhead door opening leading to the wheelchair tie-down in the economy coach cars should be accessible to persons using Personal Wheelchairs.

The Agency notes that CCD presented evidence that a person using a wheelchair must begin turning his or her wheelchair while travelling through the bulkhead door in order to access the wheelchair tie-down.

As discussed in the "Doors to the 'accessible suite'" section, the Agency is of the opinion that a doorway that is equal to or less than 75 cm (29.53") in width will not accommodate a person using a Personal Wheelchair in that the width of a doorway needs to reflect the additional space that is required on either side of a Personal Wheelchair in order to permit safe and easy manoeuvring by the person using the wheelchair. Furthermore, the Agency is of the opinion that the CSA Barrier-Free Design Standard, which specifies a minimum width of 81 cm (31.89") for a doorway, provides the most credible and reliable indicator of what the minimum width of a doorway should be in order to accommodate a person using a Personal Wheelchair.

Given the foregoing, the Agency finds that the width of the bulkhead door opening in the economy coach cars, which measures 74 cm (29.13"), constitutes an obstacle to the mobility of persons using Personal Wheelchairs.

Undueness

As discussed in the preceding obstacle analysis, the Agency recognizes, as an important principle of accessible travel, that persons who use wheelchairs should be able to remain in their own wheelchair and to access features and amenities that are specifically designed to meet their needs. Adequate doorway widths are an essential feature of accessible travel by persons who use wheelchairs in that they facilitate access to these features and amenities.

The difficulties that can arise for persons using Personal Wheelchairs when doorways do not provide additional space on either side of the wheelchair are readily apparent from the preceding obstacle analysis. The Agency is of the opinion that the difficulties which result from the inadequate width of the bulkhead door opening in the economy coach cars are significant enough that they can compromise the ability of persons using Personal Wheelchairs to access the wheelchair tie-down and features and amenities that are contained therein and to safely and easily exit the area.

VIA submitted that the widening of the bulkhead door opening would require that the aisle that is between the two washrooms in the coach car be widened to 81 cm (32"), which it characterizes as a major alteration to the coach car.

The Agency recognizes that if the bulkhead door is to be widened, the aisle that is between the two washrooms must also be widened; however, as discussed in the section of this Decision that follows, the Agency is of the opinion that VIA has not presented evidence that widening this aisle would detract from the structural strength of the coach car or compromise the safety of the Crash Energy Management Zone. As such, the Agency finds that the fact that widening the bulkhead door would also require that the aisle between the two washrooms be similarly widened does not raise any structural reason why the bulkhead door cannot be widened.

Although the Agency recognizes that widening the bulkhead door may require relocation of electrical wiring and modifications to interior structures such as the bulkhead wall, the Agency notes that it appears that a widening of the bulkhead door would not affect the exterior walls and/or structural strength of the coach car nor would it affect the Crash Energy Management Zone.

Regarding the feasibility of widening the bulkhead door to 81 cm (31.89"), the Agency notes that this results in a 6-centimetre increase in the width of the door or, in other words, a 3-centimetre reduction in the width of the walls on either side of the bulkhead door, assuming that the width on each side would be reduced equally. The Agency notes that it would appear that the width of the walls on each side of the bulkhead door is sufficient to allow for such a reduction and, therefore, finds that there is no significant structural impediment to widening the bulkhead door to 81 cm (31.89").

Alternatively, if VIA were to choose to address the obstacles pertaining to the clear floor space and turning diameter of the wheelchair tie-down area by removing the bulkhead wall and washroom that are located behind the wheelchair tie-down area, this approach would obviously, at the same time, address the obstacle presented by the bulkhead door. As noted above, the Agency also finds that there is no evidence to indicate that the modifications entailed under such an approach would affect the exterior walls and/or the structural strength of the coach car or the Crash Energy Management Zone.

In light of the foregoing, the Agency's preliminary finding is that the obstacle posed by the width of the bulkhead door in the economy coach cars constitutes an undue obstacle to the mobility of persons who use Personal Wheelchairs.

Top of Page

3. Aisle between the two washrooms in the economy coach car

CCD has raised concerns relating to the aisle between the two washrooms in the economy coach car that is marshalled immediately adjacent to the "accessible suite" in the service car. The Agency recognizes that the marshalling of the economy coach car and the service car in this manner creates an "accessible area" essential for persons who wish to remain in their own wheelchairs. However, while the Agency does consider issues arising from the marshalling of rail cars into consists in the "Train consists" section, it is of the opinion that the evidence does not support the ready identification of a fixed group of economy cars that will always be marshalled with the wheelchair tie-down immediately adjacent to the accessible washroom in the service car. As such, the Agency will not limit its analysis to a subset of economy coach cars and must consider the economy coach cars in general in this analysis.

Facts

The aisle that is between the two washrooms at the end of the economy coach car widens from 74 cm (29.13") at the end adjacent to the bulkhead door to 98 cm (38.58") at the end adjacent to the gangway. The aisle is 130 cm (51.18") in length. The aisle leads from the wheelchair tie-down, through the gangway and vestibule in the service car to the "accessible suite".

Positions of parties

CCD

CCD notes that the CSA Barrier-Free Design Standard mandates a clear aisle width of 92 cm (36.22"). Mr. Woolam points out in his report that the CSA Barrier-Free Design Standard allows for a reduction of an aisle width to 81 cm (31.89") for a maximum length of 60 cm (23.62"). CCD also notes that the Ontario Building Code mandates an aisle width of 106 cm (41.73"). Additionally, in a chart attached to its March 18, 2002 submission, CCD indicates that the accessibility standards for the United Kingdom prescribe aisle widths of 85 cm (33.46") while the Unites States prescribes 81.3 cm (32") for aisles leading to accessible sleeping compartments.

CCD adds that the rail accessibility codes governing door and aisle widths in other jurisdictions allow for three to four inches of clearance beyond the dimensions of their standard chair sizes to allow wheelchair users some measure of comfort and safety.

In her report, Mrs. Lemieux-Brassard notes that, while passing through the "very narrow aisle between the two inaccessible washrooms" to access the wheelchair tie-down, she scratched the side of the armrests of her wheelchair because the wheelchair, which is 69.21 cm (27.25") wide, was touching the aisle walls.

Mr. Woollam notes that the aisle leading from the gangway into the coach car between the two washrooms narrows to 74 cm (29.13") at the first interior bulkhead in the coach car, thereby requiring a person using a Personal Wheelchair to use a relatively straight on approach in order to be able to manoeuvre in the space. Mr. Woollam notes that, because the aisle is only 74 cm (29.13") wide at its narrowest point, it is 1 cm (.39") narrower than the Personal Wheelchair defined in section 1.1.1 of the Rail Code and, consequently, will not allow passage of all Personal Wheelchairs.

With respect to the structural implications of improving the accessibility of this aisle, Mr. Woollam states that the changes required to permit ready access to the wheelchair tie-down area include the widening of the aisle that is between the two washrooms in the coach car and the widening of the bulkhead door to 81 cm (31.89") and that these modifications would require the removal of one of the regular washrooms in the coach car.

Mr. Woollam further submits that the economic viability of making necessary modifications to permit universal access is primarily dependent upon whether they involve structural members that provide the inherent strength to the cars. Mr. Woollam states that the information which he has obtained indicates that the strength of the cars is developed by below floor longitudinal members and the outer profile wall of the car body. Mr. Woollam describes this part of the trains as a complex "Energy Management System" or Crash Energy Management Zone that absorbs energy by crumpling during end of car impacts. Mr. Woollam submits that the aisle between the two washrooms in the coach car is outside the Crash Energy Management Zone and could be modified with minimal engineering, modest cost and without any compromise to safety.

VIA

In a submission regarding the width of doors in the accessible areas on the Renaissance trains, VIA advises that, as part of the modifications that would be necessary to widen the doors to 81.28 cm (32"), the 74.93 cm-wide (29.5") corridor between the two washrooms located behind the wheelchair tie-down in the coach car adjacent to the service car would need to be widened.

VIA also expresses the view that the contents of other rail accessibility codes are irrelevant to any consideration by the Agency. VIA adds that codes of practice must be viewed in their existing operating environment and cannot be analyzed clause for clause without a context.

Analysis

Obstacle

The Agency refers to its analysis of the aisles that are between the seats in the coach car and in the service and sleeper cars, wherein it concluded that aisle widths that are less than 81 cm (31.89") in width constitute obstacles to the mobility of persons using Personal Wheelchairs.

In reaching the foregoing conclusion, the Agency determined that:

aisles which accommodate onboard wheelchairs but which do not accommodate a person's own wheelchair could prevent some persons with disabilities from accessing areas on trains;
aisles that are equal to or less than 75 cm (29.53") in width will not accommodate a person in a Personal Wheelchair while in motion, in that this width does not reflect the additional space that is required on either side of a Personal Wheelchair in order to permit safe and easy manoeuvring by the person using the wheelchair; and,
a width of 81 cm (31.89") will provide sufficient space on either side of a Personal Wheelchair to permit a person to safely and easily travel down an aisle in the Renaissance Cars.

Finally, as discussed in the Agency's analysis of the wheelchair tie-down, the Agency's preliminary finding is that the bulkhead door in the economy coach cars is an undue obstacle to the mobility of persons using Personal Wheelchairs and that it needs to be widened to at least 81 cm (31.89") in order to accommodate persons using Personal Wheelchairs. In light of this, the Agency is of the opinion that it is reasonable that the width of the aisle that is between the two washrooms, at one end of which is the bulkhead door, also be at least 81 cm (31.89") in width.

The Agency notes CCD's submission that both the United Kingdom and the United States have accepted that an aisle width of at least 81 cm (31.89") is needed for an accessible route.

In view of the foregoing, the Agency finds that the part of the aisle that is between the two washrooms in the economy coach car that is less than 81 cm (31.89") in width constitutes an obstacle to the mobility of persons using Personal Wheelchairs.

Undueness

As discussed above, the Agency is of the opinion that adequate aisle widths are an essential feature of accessible rail travel by persons who use Personal Wheelchairs in that they permit a person to remain in their own wheelchair during travel and facilitate access to the features and amenities that are designed to meet their needs. In this regard, the aisle that is between the two washrooms in the economy coach car marshalled with the wheelchair tie-down immediately adjacent to the "accessible washroom" in the service car is of particular importance to persons using wheelchairs given that it is necessary for a person occupying the wheelchair tie-down to travel through this aisle to access both the wheelchair tie-down and the "accessible washroom". As such, this aisle has particular significance from an accessibility perspective as it is integral to key accessible areas in the Renaissance Cars to persons using Personal Wheelchairs. However, as the Agency has already noted, it is unable, based on the evidence on file, identify a fixed group of economy coach cars that will only be used in consists with the wheelchair tie-down marshalled next to the "accessible washroom" in the service car. In the absence of this evidence, the Agency will not restrict its analysis to a subset of economy coach cars.

The difficulties that can arise for persons using Personal Wheelchairs from the inadequate width of the aisle between the two washrooms in these coach cars have been described in detail in the obstacle analysis pertaining to the other aisle widths in the Renaissance Cars. The Agency is of the opinion that these difficulties are significant enough that they can compromise the ability of some persons who use Personal Wheelchairs to travel on the Renaissance trains as this aisle is integral to the accessible areas on the trains.

With respect to the structural implications of widening the aisle to 81 cm (31.89"), while the Agency notes that VIA's diagrams of the Crash Energy Management Zone indicate that a portion of the aisle that is between the two washrooms is situated in this area of the coach car, the Agency finds that there is no evidence to indicate that the modifications that would be required in order to widen the aisle to 81 cm (31.89") would affect the structure of the Crash Energy Management Zone. In this regard, although there may be several possible approaches to widening the aisle to 81 cm (31.89"), the Agency finds that there is no evidence to indicate that widening the aisle to 81 cm (31.89") would affect the exterior walls, the underframe of the car body, or the structure of the Crash Energy Management Zone that is located at the end of the coach car. For example, the Agency notes that the aisle could be widened by using space from one or both washrooms or by removing one of the washrooms altogether. Either approach would entail the partial or total removal of interior walls and the possible relocation of washroom fixtures but would appear not to require changes to the car's exterior walls or undercarriage, which could otherwise affect the Crash Energy Management Zone. As such, it would appear that the modifications that would be necessary to widen the aisle would not detract from the structural strength of the coach car nor would they compromise the safety of this area of the coach car.

Additionally, the Agency notes that only part of the aisle that is between the two washrooms would need to be widened. Given that the length of the aisle is 130 cm (51.18") and the aisle widens from 74 cm (29.13") at the bulkhead opening to 98 cm (38.58") at the end of the aisle that is nearest to the gangway at a rate of .185 cm for every one centimetre of length [(98 cm - 74 cm) ÷ 130 cm], in order to widen the aisle from 74 cm to 81 cm, or by 7 cm, 37.84 cm [7 ÷ .185] of the aisle needs to be widened to 81 cm (31.89") (Given that the approximate length of the aisle is 51.18" and the aisle widens from 29.13" at the bulkhead opening to 38.58" at the end of the aisle that is nearest to the gangway at a rate of .185" for every one inch of length [(38.58" - 29.13") ÷ 51.18"], in order to widen the aisle from 29.13" to 31.89", or by 2.76", 14.92" [2.76 ÷ .185] of the aisle needs to be widened.). In effect, approximately one third of the length of the aisle, beginning at the bulkhead door, would need to be widened.

With respect to the economic implications of widening the aisle to 81 cm (31.89"), the Agency notes that VIA filed no submissions regarding the specific economic implications of remedying the obstacle. However the Agency notes CCD's submission that, as the changes involved do not affect the Crash Energy Management Zone or the structural members, it appears that changes could be made at modest cost.

In the absence of evidence from VIA to the contrary, the Agency accepts that the changes required to widen the aisle to 81 cm (31.89") would largely pertain to the dismantling and reconstruction of interior walls of one or both washrooms in addition to the possible removal of existing washroom fixtures, and the purchase and installation of new washroom fixtures. Based on the foregoing and the evidence filed by VIA, the Agency is not convinced that the obstacle presented by the width of the aisle between the two washrooms in the economy coach car cannot be eliminated. As such, the Agency's preliminary finding is that this obstacle constitutes an undue obstacle to the mobility of persons using Personal Wheelchairs.

Top of Page

4. "Accessible suite" in the service cars

The "accessible suite" is located in the service car. The suite is composed of a sleeper unit and an adjoining washroom. The suite is identified by VIA as being accessible to persons with disabilities, including persons who use wheelchairs. The "accessible washroom" in the suite is the only such washroom in the Renaissance Cars.

The following issues raised by CCD are examined in this section: the width of the doors in the suite; the space provided within the suite to retain a wheelchair, to effect transfers to the toilet, and to turn a wheelchair around.

a) Doors in the "accessible suite"

Facts

The doors between the vestibule and the sleeper unit and between the sleeper unit and the washroom are electric sliding doors which each have an opening of 75 cm (29.53"). The doors are operated by pushing buttons that open, close or lock the door. An electronic eye system prevents the doors from closing while a person is moving through them. Although the widths of the doors were originally 72 cm (28.35") and 73 cm (28.74"), respectively, VIA subsequently widened the doors to 75 cm (29.53").

Positions of parties

CCD

CCD asserts that the doors to the sleeper unit and to the washroom are not accessible to a person using a Personal Wheelchair. CCD comments that a high percentage of persons who use wheelchairs would be precluded from accessing areas in the Renaissance Cars and states, "...we're not talking large wheelchairs, unusual, special wheelchairs, we're talking about wheelchairs that are in common use...".

In particular, Mrs. Lemieux-Brassard submits that going through the door to the "accessible suite" was "very tight" and that, because most manual wheelchairs are wider than power wheelchairs due to the angled back wheels, they would not fit through the doorway to the "accessible suite". Furthermore, in his report to CCD, Mr. Ross notes that he uses a manual wheelchair that would be described as "normal" as opposed to large or unusual. Mr. Ross notes that, when he attempted to enter the "accessible suite", he had to force his chair through and that the tires touched the doorframes on both sides. Mr. Ross submits that persons who have larger wheelchairs or who do not have his ability to propel a wheelchair will not be able to enter the suite. Mr. Ross expresses the view that leaving no clearance on either side for most persons and denying access to the many persons who have wider wheelchairs is a serious imposition.

Regarding the types of wheelchairs in use in Canada, CCD notes that its three experts confirmed that there is no Canada-wide data currently available on the proportions of wheelchairs and scooters in use, which is broken down according to dimensions. CCD refers to Mr. Harding's statement that the dimensions of wheelchairs and scooters in use today are extremely variable and depend on the type of device, the manufacturer and the needs of the individual. Furthermore, Mr. Harding expresses the view that whether a person is precluded from accessing an area in a Renaissance Car, depends on the specific needs of that person and not just the dimensions of the mobility aid being used.

CCD notes that Mr. Harding and other experts who prepared reports on behalf of CCD express the opinion that "...simply being able to squeeze a chair through a space is not the full answer as to what is required for purposes of accessibility." CCD submits that the following ergonomic factors also need to be considered: several inches clearance on either side of a manual wheelchair are required in order to accommodate a person's arms and in order to avoid injuring themselves on the doorframe as they propel a wheelchair through a door; a high percentage of persons who use power wheelchairs have "coordination issues", such as involuntary muscular movements, which make it difficult, if not impossible, to pass through a very tight space; devices fixed to the side of wheelchairs such as joysticks, have space implications; clear space is needed on both sides of a narrow doorway in order that a person can enter and exit in a straight-on fashion, otherwise, extra space must be provided in order to allow a person to begin turning his or her wheelchair before the door is cleared; and the width of door openings on trains should reflect the fact that the floors are not entirely stable while trains are in motion and some persons with disabilities, particularly those with certain neurological disabilities, would have more difficulty accurately controlling movement in this situation. In addition, Ms. Ringaert submits in her report that spacticity and wheelchair accessories such as trays and hand and head controls are also relevant factors in determining the width of a doorway.

CCD asserts that the problems of travelling through the doorways in the "accessible suite" are compounded by two factors in particular: the approach to the doorway and the lack of turning diameter in the suite.

Specifically, CCD notes that diagrams provided by VIA show that a person using a wheelchair who is travelling from the wheelchair tie-down must enter the sleeper unit in the "accessible suite" at an angle while travelling through the door, such that a straight-on approach is not possible. Additionally, CCD states that the doorway to the "accessible washroom" cannot be approached directly.

With respect to the lack of turning diameter in the "accessible washroom" and coach car, CCD submits that this will result in persons who are returning to the wheelchair tie-down from the "accessible suite" having to back their wheelchairs through doorways, and the sleeper unit of the "accessible suite" to the vestibule and that going a significant distance in reverse is difficult and dangerous for persons using wheelchairs and other passengers who may be in the vicinity. In his report, Mr. Harding submits that if there is insufficient turning area for a wheelchair, a person is forced to back out of an area when exiting rather than being able to approach a door moving forwards, and that most persons with disabilities would be unable to operate their wheelchairs with the same precision as they would while doing so using a forward-facing approach, such that additional space would be required in order to avoid hitting the doorframe and potentially hurting themselves or damaging their wheelchair.

With respect to doorway widths, Mr. Ryan submits in his report, that, if minimal clearance between the wheelchair and the doorway is assumed, experience shows that most manual wheelchairs can pass through a door opening of 81.28 cm (32"). Mr. Ryan further submits that, in order to allow unobstructed passage for most powered wheelchairs equipped with common accessories, doorways should be at least 91.44 cm (36"). However, Mr. Harding submits that there is a large number of persons using manual wheelchairs who require a wider space than would be required for persons using power wheelchairs whose seating requirements are otherwise equivalent.

CCD notes that VIA's accessibility guidelines for passenger rail cars state that "Clearances for all doors (vestibule, railcar, washroom) should be at least 82 cm, wide enough for a wheelchair to pass." CCD further notes that the door to the washroom in the LRC VIA-1 train, which has been retrofitted for persons with disabilities, is 88.9 cm (35") wide.

CCD notes that the Rail Code does not prescribe specific door widths as is the case in the United States and the United Kingdom and as is reflected in mandatory standards in comparable Canadian legislation, such as building codes. CCD advises that reference to other codes was intended to assist VIA by demonstrating how those other countries have recognized the need for sufficient clearance on either side of a standard wheelchair and notes that, since 1998, doors in trains in the United Kingdom must be 85 cm (33.46") wide. CCD further notes that, under the Americans with Disabilities Act, all doors must be at least 81.28 cm (32") wide and washroom doors must be a minimum of 99.06 cm (39") in width.

CCD asserts that, at 75 cm (29.53"), these doorways do not meet the criteria for wheelchair-accessible doorways as set out in Appendix A of the Rail Code, which defines such doorways by footnote reference to the CSA Barrier-Free Design Standard which specifies that 81 cm (31.89") is the minimum width for a clear door opening.

In his report, Mr. Harding notes that wheelchair vendors and users tend to be aware of guidelines governing the width of wheelchairs, such as the CSA Barrier-Free Design Standard, provincial building codes, and codes and guidelines such as the Rail Code, and that, wherever possible, efforts are made to design personal wheelchairs that fit within these standards. Mr. Harding notes that in his experience, the most common dimension concerning wheelchair width to which attention is paid, is the CSA Barrier-Free Design Standard of 81 cm (31.89") for doorways. Finally, Mr. Harding expresses the view that most wheelchairs in operation in Canada today were purchased with the expectation that doorways would increasingly reflect these standards.

CCD notes that the CSA Barrier-Free Design Standard is based on the dimensions of manual wheelchairs in use in the 1970's and that sizes for manual and power wheelchairs have significantly increased since that time. CCD comments that the Renaissance Cars are the first new trains in twenty years and that they will be in use for at least that long and expresses the view that, during that time, the CSA Barrier-Free Design Standard for door widths will almost inevitably increase.

CCD states the position that the CSA Barrier-Free Design Standard, itself, represents a "huge compromise" of the position of persons with disabilities. CCD also refers to the evidence presented in reports filed by Ms. Ringaert, Mr. Harding, and Mr. Ryan, who believe that doors should be wider than 81 cm (31.89"). CCD notes that, while the reports indicate that most manual wheelchairs can pass through a door opening of 81.28 cm (32"), CCD's experts expressed the view that doorways should be at least 91.44 cm (36") in order to allow unobstructed passage for most power wheelchairs equipped with common accessories and, as such, the doors in the Renaissance Cars would present major obstacles for most adults who use wheelchairs. Notwithstanding this, CCD advises that the minimum clear door opening of 81 cm (31.89") mandated by the CSA Barrier-Free Design Standard is the "minimum door width expected" and comments that its request for door widths of 81.28 cm (32") is contingent on addressing the issue of turning within the doors.

CCD, however, asks the Agency to treat doors that are not "wheelchair accessible" as undue obstacles and comments that "[t]here can be no excuse for not knowing that 81 cm (31.89") of "usable width" is the minimum acceptable "wheelchair accessible door" as Canada enters the 21st century." CCD requests that the Agency direct VIA to widen the two doors in the "accessible suite" to the width of "wheelchair accessible doors", which CCD notes is 81 cm (31.89") according to the Rail Code and the CSA Barrier-Free Design Standard.

CCD made submissions regarding both the structural and economic implications to VIA of widening these doors.

Regarding the structural implications, Mr. Woollam disagrees with VIA's assertion that some of the work involved in widening the doors in the accessible train, including the two internal doors of the "accessible suite" would, in some cases, involve changes to the Crash Energy Management Zone with the possible compromise of the entire safety portion of the structure. Mr. Woollam asserts that the two internal doors in the "accessible suite" are outside the Crash Energy Management Zone and can be modified with minimal engineering, modest cost and without any compromise to safety.

In this regard, CCD notes that, unlike the exterior doors that are at the end of the service car where the "accessible suite" is located in respect of which VIA advised that any widening of the doors would involve structural changes on the external portion of the train and in the area of the Crash Energy Management Zone, VIA did not make any comparable claim with respect to the doors of the "accessible suite". CCD submits that it is clear that there are no structural limitations that would prevent the further modifications it seeks and comments that there were no structural limitations preventing VIA from creating a door into the accessible washroom in the LRC VIA-1 cars that measures 91.44 cm (36") in width when it retrofitted them.

In her report to CCD, Ms. Ringaert expresses the view that maintenance and repair issues should be considered when examining the size of rooms and openings to rooms. Ms. Ringaert submits that these are issues for VIA as passengers bump into walls and remove paint and surface material and VIA could potentially be responsible for repairing damage to passengers' wheelchairs, scooters, or the fine head and hand controls as they become damaged.

With respect to the economic implications of widening these doors, Mr. Woollam expresses the view that, "...based on magnitude of scale, the modifications required to change door widths...would not be greater in cost than the proposed changes to the lounge which are primarily designed to provide a more enhanced service to the non-disabled riding public." CCD notes that some of the Renaissance Cars have been reconfigured into other cars, including baggage cars and dining cars, and expresses the view that this fact confirms Mr. Woollam's conclusion that alterations can be made to completed cars and necessarily to all those cars for which no work has been started or for which the work is still in progress.

Finally, CCD states that VIA did not disclose the costs involved in making the modifications to enlarging the two doors in the "accessible suite" when it increased their width to 75 cm (29.53"). CCD indicates that the Agency discussed VIA's responsibility for withholding this information in Decision No. LET-AT-R-232-2002. CCD explains that, according to the Lemonde case, the Agency must engage in a process of balancing in order to properly exercise its jurisdiction to eliminate undue obstacles. CCD submits that the Agency is entitled to assume the costs involved in removing the obstacle of undersized doorways would not be undue given VIA has deprived the Agency of relevant information concerning the issue of undueness. CCD explains that, to do otherwise, would result in an assumption that to modify the doors would involve an undue expense to VIA, a conclusion for which there is no evidentiary basis.

VIA

Initially VIA submitted that the doorway from the vestibule into the "accessible suite", which then measured 71.1 cm (28") wide, met the obligations under the Rail Code in that the door was wide enough to allow access to a person using a personal wheelchair. In response to a question posed by the Agency as to the dimensions of wheelchairs and scooters which might be precluded from accessing the "accessible suite", VIA advised that it is not familiar with the various dimensions of all personal wheelchairs and scooters and commented, "...suffice it to say that any personal wheelchair or scooter with a dimension greater than those provided for the accessible suite doors and wheelchair tie-down area would be precluded from using these areas."

VIA asserts that the Renaissance Cars are existing cars and, as such, they qualify for consideration under section 1.3.3 of the Rail Code, which provides that, if as a result of structural limitations of an existing coach car, the washroom cannot be accessible to a person in a Personal Wheelchair, it should at least be accessible to a person in an onboard wheelchair. Prior to VIA widening the "accessible suite" door openings to 75 cm (29.53"), VIA submitted that, for this reason, the door to the "accessible washroom" did not need to be accessible to persons using their own wheelchairs. Additionally, VIA submits that there is no reference in the Rail Code to the need for additional hand clearance and that the Rail Code recognizes that the CSA Barrier-Free Standard was developed for buildings "where more 'real estate' is available". Finally, VIA expresses the view that "oversize equipment" can be accommodated on LRC trains or through the use of a Washington chair.

Specifically with respect to the feasibility of widening the doors to the sleeper unit and washroom in the "accessible suite" to 82 cm (32.28"), VIA advises that, while it is feasible to widen both doors, the door frames are very narrow and it is uncertain whether the doors and sliding tracks could be widened if the frames were to be enlarged. VIA further advises that new doors and sliding tracks may be required or an alternative manual swing door might be considered.

VIA later notes, with respect to the economic implications of widening the doorways in the "accessible suite", that costs for such modifications have not been determined but that a review is underway. Initially, VIA asserts that the cost, planning and associated delay in widening doors to 81.28 cm (32") are too great to justify the expense. VIA states that it would take forty-five days at a cost of $100,000 to prepare an estimate of the costs to widen doors to 81.28 cm (32") in areas of the trains designed to be accessible to persons with disabilities. VIA states that if the doors were to be widened, it would take approximately nine to twelve months for Bombardier to prepare the appropriate engineering and construction drawings. VIA advises that it had not asked Bombardier to prepare the cost estimate because it, alone, is costly and the associated delay extensive.

Analysis

Obstacle

As previously noted, the Agency is of the opinion that one important aspect of the principle of independence is the recognition of the importance of a person's own mobility aid to his or her independence, dignity, safety and comfort. For example, in the context of this application, rail cars have provided an important opportunity within the transportation network for a person to be able to choose to remain in his/her own wheelchair and the Agency is of the opinion that it is important to preserve this aspect of rail travel wherever possible. As such, where there are features specifically designed to meet the needs of persons with disabilities who wish to remain in their own wheelchair, such as those contained in the sleeper unit and in the washroom in the "accessible suite", it is obviously essential that persons with disabilities must be capable of accessing these features in their own wheelchair. In this way, for example, doorways need to provide sufficient space to allow a person using his/her own wheelchair to manoeuvre safely and easily through them. To this end, the Agency has also determined that it will assess the accessibility of the Renaissance Cars using the standard of the Personal Wheelchair as defined in the Rail Code.

The Agency notes that the foregoing approach is consistent with the Rail Code, which provides that doorways to areas that are to be wheelchair-accessible should be wide enough to permit a person in a Personal Wheelchair to access those areas. Thus, the doors leading into the sleeper unit and washroom in the "accessible suite" should be accessible to persons using Personal Wheelchairs.

The Agency notes that although the Rail Code provides that the minimum clear floor area required to accommodate a person in a Personal Wheelchair is 75 cm by 120 cm (29.53" x 47.24"), as previously discussed, these dimensions are for an occupied wheelchair which is not in motion. Accordingly, the Agency is of the opinion that these dimensions do not provide the space necessary to accommodate a person using a Personal Wheelchair that is in motion.

CCD has presented evidence that various ergonomic factors need to be considered when determining the amount of space required to accommodate a person using a wheelchair in order to ensure that the person can safely and easily move through an area. Evidence has also been presented that a person using a wheelchair is often required to enter an area while travelling in reverse and often must begin turning his or her wheelchair while travelling through a doorway or opening in order to access the areas beyond.

Based on the foregoing, the Agency is of the opinion that a doorway that is equal to or less than 75 cm (29.53") in width will not accommodate a person using a Personal Wheelchair in motion in that the width of a doorway needs to reflect the additional space that is required on either side of a Personal Wheelchair in order to permit safe and easy manoeuvring by the person using the wheelchair. Adequate clearance space is needed, not only because the wheelchair will be in motion, but also because the train will likely be in motion while the person with a disability attempts to manoeuvre through doorways.

The Agency accepts that while it is apparent that in order to accommodate a Personal Wheelchair, the width of a doorway needs to be greater than 75 cm (29.53"), what door width will accommodate a person using a wheelchair depends on the dimensions of that person's wheelchair, whether any accessories are attached to the wheelchair, and the nature of the person's disability. Furthermore, the Agency notes CCD's submission that there is no Canada-wide data currently available on the proportions of wheelchairs in use, which is broken down according to dimensions, and that the dimensions of wheelchairs in use today are extremely variable and dependent on the type of device, the manufacturer, and the needs of the individual. The Agency also notes CCD's view that whether a person using a mobility aid is precluded from accessing an area in a Renaissance Car depends on the specific needs of that person, and not just the dimensions of the device being used.

In recognition of the foregoing and, in recognition of the expertise of the Canadian Standards Association in establishing appropriate dimensions and design features for buildings and other facilities that are meant to ensure access and use by persons with disabilities, including those who use wheelchairs and other mobility aids, the Agency will refer to the CSA standards on door widths. The Agency is of the opinion that the CSA provides the most credible and reliable indicator of what the minimum width of a doorway should be in order to accommodate a person using a Personal Wheelchair. In this regard, the Agency notes that the Rail Code defines what is meant by a wheelchair-accessible doorway by footnote reference to the CSA Barrier-Free Design Standard. In addition, the Agency refers to Mr. Harding's submission that, in his experience, the most common dimension referred to by wheelchair manufacturers is the CSA Barrier-Free Design Standard of 81 cm (31.89") for doors.

Although the Agency acknowledges that, given the ergonomic factors and customized accessories which vary from individual to individual, a doorway width of 81 cm (31.89") may not accommodate every wheelchair, the Agency is of the opinion that the CSA dimension is a reasonable standard to apply in the present matter. Further, the Agency is of the opinion that 81 cm (31.89") is a reasonable door width for areas in trains which are designed to meet the needs of persons with disabilities, such as the sleeper unit and the washroom in the "accessible suite" on the Renaissance trains. The Agency notes that this appears to have been accepted by VIA, both in the terms of VIA's accessibility guidelines for passenger rail cars and in its widening of the door to the accessible washroom in VIA's LRC train to 88.9 cm (35"). Finally, the Agency notes that doors on many trains operating in North America and the United Kingdom are at least 81 cm (31.89") in width.

In light of the foregoing, the Agency finds that the width of the doors to the sleeper unit and the washroom in the "accessible suite", both of which measure 75 cm (29.53"), constitute obstacles to the mobility of persons using Personal Wheelchairs.

Undueness

The difficulties that can arise for persons using Personal Wheelchairs when doorways do not provide additional space on either side of the wheelchair are readily apparent from the preceding obstacle analysis. The Agency is of the opinion that the difficulties which result from the inadequate width of the doorways to the sleeper unit and the washroom in the "accessible suite" are significant enough that they can compromise the ability of persons using Personal Wheelchairs to enter the "accessible suite" and access the features and amenities that are contained therein and to safely and easily exit the area.

The Agency notes that VIA has widened the doors to the sleeper unit and the washroom in the "accessible suite" from 71.76 cm and 73.03 cm (28.25" and 28.75"), respectively, to 75 cm (29.53") for each door. While VIA has not provided any information as to how these doors were widened, the Agency does note that in a submission filed prior to the work, VIA advised that new doors and sliding tracks or an alternative manual swing door may be required, given that VIA was, at the time, uncertain whether the existing doors and sliding tracks could be widened if the frames were to be enlarged.

The Agency notes VIA's submission regarding the $100,000 and the 45 days it would take to obtain an estimate of the costs to widen doors to 81.28 cm; however, the Agency is of the opinion that this submission reflects the widening of exterior doors as well as these interior doors. In view of the significantly different factors involved in the widening of exterior doors, the Agency finds that this evidence is of little assistance in its analysis of interior doors such as these.

The Agency finds that there is no evidence to indicate that the modifications necessary to widen the doors to the sleeper unit and the washroom in the "accessible suite" to at least 81 cm (31.89") would affect the exterior walls and/or the structural strength of the service car or the Crash Energy Management Zone. In this regard, the Agency notes CCD's submission that the two doors are outside the Crash Energy Management Zone and can be modified with minimal engineering. Given that VIA has already widened the doors to the sleeper unit and the washroom in the "accessible suite" and, absent any evidence to the contrary, the Agency finds CCD's argument compelling. Furthermore, the Agency notes that while VIA advised that it is undertaking a review to determine the costs for widening the doors to the sleeper unit and washroom in the "accessible suite", the information has not, to date, been provided.

In summary, the Agency finds that no compelling evidence was presented by VIA indicating that, from a structural or economic perspective, the doors to the sleeper unit and the washroom in the "accessible suite" cannot be widened to at least 81 cm (31.89").

Based on the foregoing, the Agency's preliminary finding is that the obstacle posed by the width of the doors in the "accessible suite" constitutes an undue obstacle to the mobility of persons who use Personal Wheelchairs.

b) Space in the "accessible suite"

CCD has raised three issues related to the space provided within the accessible suite: (i) the inability of a person to retain his/her personal wheelchair in the suite; (ii) the space beside the toilet in the washroom; and (iii) the space to turn a wheelchair around within the suite.

i) Inability to retain a wheelchair in the "accessible suite"

Facts

The sleeper unit measures 136 cm long by 120 cm wide (53.54" x 47.24").

There is a bench seat along the interior wall of the sleeper unit that separates the "accessible suite" from the service car aisle. There are two beds: one that is converted from the bench seat and a second one that unfolds from the wall above the seat. There is a folding table located by the window along the exterior wall of the room.

The width of the unit is reduced to 81 cm (31.89") when the folding table is deployed. Dimensions of the table are 60 cm long, 46 cm wide and 75 cm high (23.62" x 18.11" x 29.53").

Positions of parties

CCD

In her report, Mrs. Lemieux-Brassard notes that during the September 20, 2001 inspection of the Renaissance Cars, she was advised by VIA that her wheelchair could not remain in the "accessible suite" and had to be stored at the other end of the service car. Ms. Lemieux-Brassard further notes that she was advised that, in order to use the washroom, she would need to call a staff person to bring the onboard wheelchair for her use. In this regard, Ms. Lemieux-Brassard notes that, while she can safely transfer from her own wheelchair, she cannot do so from the onboard wheelchair, which does not provide the same degree of lateral support. Finally, Ms. Lemieux-Brassard asserts that the "accessible suite" is only accessible using VIA's on-board wheelchair, "...on the condition that you have an attendant that sleeps in the upper bunk area or that you can be without your chair and you call staff to assist you."

CCD expresses the view that allowing a person to retain their wheelchair in the "accessible suite", or storing it in the wheelchair tie-down area at night, would produce major efficiencies for passengers and for VIA.

VIA

VIA advises that the dimensions of the clear floor space in the sleeper unit are 111.7 cm by 137.2 cm (43.98" x 54.02").

VIA did not make submissions with respect to CCD's concerns about a person's inability to keep their wheelchair in the "accessible suite". However, in the context of the related issue of the storage of wheelchairs, VIA indicates that, while it considered providing a wheelchair tie-down in the "accessible suite", it decided that the wheelchair tie-down should be located in a regular coach car to avoid any isolation of passengers with disabilities.

Analysis

Obstacle

The Agency is of the opinion that the design and location of amenities and fixtures should be such that they facilitate easy access and use by persons with disabilities. The principle of independent access, as discussed in the "Principles of accessibility" section of this Decision, is not met if a person with a disability is unable to keep his/her own wheelchair with them while using the "accessible suite".

The Agency is of the opinion that a person using a wheelchair should have reasonable access to his/her wheelchair such that it is available when the person needs it, particularly in areas such as the "accessible suite", which are meant to specifically meet their needs. To limit a person's access to his/her wheelchair can result in that person being confined to an area and being deprived of his/her independence and sense of security. As previously noted, the Agency recognizes the importance of a person's own wheelchair and is of the opinion that, while an onboard wheelchair should be provided as an option to those who can and wish to use it, it is not a substitute for a person's own wheelchair. The Agency is of the opinion that it is unacceptable that a person with a disability be deprived of his/her independent means of mobility in an area of the Renaissance trains that is intended to be used by persons with disabilities, including those who use wheelchairs.

The foregoing principle is reflected in the provision of the Rail Code that provides that the floor space of a wheelchair-accessible sleeper unit should permit a person using a Personal Wheelchair to enter the room and use all the facilities contained therein. The Agency notes that the Code does not contemplate any limitations to this ability. In providing a wheelchair-accessible sleeper unit, there is clearly an expectation that a person using the unit can do so using his/her own wheelchair. Obviously, if a person who has reserved the "accessible suite" and who relies on his/her wheelchair in order to be ambulatory is denied access to his/her own wheelchair, that person will not be able to independently use the "accessible suite".

Furthermore, the Agency notes that the inability of a person to retain his/her own wheelchair in the "accessible suite" necessarily means that a person who is occupying the "accessible suite" during an overnight service or a trip that spans day and night will need to be capable of using an onboard wheelchair and rely on an attendant or VIA personnel to propel the onboard wheelchair should that person need to use the washroom facilities. This arrangement deprives a person of his or her independence.

Based on the foregoing, the Agency finds that the inability to retain a Personal Wheelchair in the "accessible suite" constitutes an obstacle to their mobility.

Undueness

As discussed in the preceding obstacle analysis, the Agency recognizes, as important principles of accessible travel, that persons who use wheelchairs should have the option of remaining in their own wheelchair and that they should have easy access, using their own wheelchair, to features and amenities that are specifically designed to meet their needs.

The foregoing principles reflect the fact that many wheelchairs are customized to meet a person's specific needs and that depriving a person of his/her own wheelchair may prevent that person from accessing those areas containing fixtures and amenities that are specifically designed to meet their needs and detract from that person's independence and compromise his/her safety and comfort.

It is clear from the pleadings that the purpose of the "accessible suite" is to provide specific features and amenities to accommodate the needs of persons who use wheelchairs. The Agency is of the opinion that, in order to preserve the foregoing principles of accessible travel, it is essential that a person using a Personal Wheelchair be able to use it in the "accessible suite".

The difficulties posed to persons using wheelchairs by their inability to retain their own wheelchairs in the "accessible suite" have been detailed in the Agency's obstacle analysis. The Agency is of the opinion that these difficulties are significant enough that they can compromise the ability of persons using wheelchairs to travel on the Renaissance trains.

While the Agency recognizes the importance to persons using wheelchairs of being able to retain their wheelchairs in the "accessible suite", the Agency also recognizes that there are structural and economic implications to VIA of addressing these obstacles, which must be weighed in the Agency's assessment of the undueness of the obstacles.

The Agency is of the opinion that given the dimensions of the clear floor space in the sleeper unit exceed the clear floor area required to accommodate a stationary Personal Wheelchair, the sleeper unit will accommodate a Personal Wheelchair.

However, the Agency notes that a wheelchair tie-down mechanism may be required for safety reasons in order for a person to be able to retain his/her wheelchair in an area on a train such as a sleeper unit. In this regard, the Agency finds that VIA's submission implies that it is feasible to install a wheelchair tie-down in the "accessible suite" but that it decided not to do so to avoid any isolation of persons with disabilities.

In this regard, the Agency is of the opinion that the size of the sleeper unit can accommodate a wheelchair tie-down for a Personal Wheelchair. The Agency refers back to CCD's evidence that a wheelchair tie-down that permits a person to manoeuvre his/her wheelchair directly into it can be dimensionally the size of a Personal Wheelchair and still be adequate in size. The Agency finds that the clear floor space of the sleeper unit indicates that this would be possible.

In light of the foregoing, and based on the evidence on file, the Agency finds that there is no evidence to indicate that there are structural or economic impediments that would prevent a person from being able to retain his/her Personal Wheelchair in the "accessible suite". Furthermore, the Agency is of the opinion that it appears that there is no structural impediment to installing a wheelchair tie-down in the "accessible suite" and that the relative cost to install one is likely minimal.

Based on the foregoing, the Agency's preliminary finding is that the obstacle posed by the fact that persons will not be able to retain a Personal Wheelchair in the "accessible suite" constitutes an undue obstacle to their mobility.

ii) Space to perform side transfers to the toilet

Facts

The floor dimensions of the washroom are 151 cm long by 137 cm wide (59.45" x 53.94") at the widest point and 151 cm long by 114 cm wide ( 59.45" x 44.88") at the narrowest point. The interior wall of the sleeper unit, against which is situated the bunk bed, protrudes into the washroom at the doorway for a distance of 60 cm (23.62"). The Agency noted in Decision No. LET-AT-R-63-2002 dated March 1, 2002 that there is an interior space between the "accessible washroom" and the service car aisle and that the area behind the washroom is a storage room.

The toilet, with the cover raised, is 47 cm (18.5") high from the floor level. The width of the toilet is 37 cm (14.57") and the distance from the exterior wall to the centre of the toilet is 35 cm (13.78").

The sink is positioned on an angle in the corner beside the door. The toilet is located against the opposite wall and faces the sink. A flip-up grab bar measuring 81 cm ( 31.89") in length, is mounted on the back wall, to the right of the toilet at a distance of 70 cm (27.56") from the exterior wall and 35 cm (13.78") from the centre of the toilet. When the grab bar is in the 'down' position, the top of the bar is 74 cm (29.13") from the floor.

Positions of parties

CCD

CCD submits that the dimensions of the washroom, including obstacles, is not large enough to allow manoeuvring and it raises concerns regarding the ability of persons who use wheelchairs to transfer to the toilet. CCD notes that the CSA Standard specifies a 102-centimetre (40.16") minimum clear space for transfers to a toilet.

Mr. Woollam asserts in his report to CCD that the toilet facilities only provide for a "right side transfer" and give no consideration to those persons capable of only a "left side transfer" or to the need for a front approach. Ms. Lemieux-Brassard asserts that the only person with a disability who can use the "accessible washroom" is someone who can do a face-to-face transfer because there is not enough space between the wall and the toilet seat to permit a side transfer. Ms. Ringaert comments that the washroom looks larger than it is but, because of the protrusion of the interior wall of the sleeper unit into the washroom, dead space is created that cannot be used as transfer space to the toilet.

Ms. Lemieux-Brassard notes that she can use her own wheelchair in the accessible washroom in the VIA-1 cars and can transfer to the toilet, without assistance, using a fold-down transfer seat. Ms. Lemieux-Brassard advises that face-to-face transfers are straightforward and side-to-side transfers can be made using the transfer seat.

CCD comments that the washroom designated as being accessible in the existing VIA-1 coach cars is basically acceptable to CCD and it considers it to be accessible even though it is smaller in area than the "accessible washroom" in the Renaissance Cars. CCD explains that the existing VIA-1 washroom closely compares to the one prescribed under the Americans with Disabilities Act. CCD illustrates its point by providing a diagram from the United States Access Board's guidelines on Intercity Rail Cars and Systems, including an "accessible rest room", which depicts a clear floor space in front of the area containing the toilet and sink of 89 cm by 152.4 cm (35" x 60").

CCD submits that every part of the service car, with the exception of the "accessible suite", is being modified in terms of walls and uses. CCD expresses the view that now is the proper time to reconfigure the "accessible suite". CCD comments that because VIA did not respond to a question posed by the Agency regarding the feasibility of using the space between the washroom and the service car aisle in order to increase the available space in the "accessible suite", the reconfiguration of the "accessible suite" is problematic because the Agency has been deprived of relevant information. Nonetheless, CCD asserts that there is enough space to reconfigure the "accessible suite" in order to take into account the needs of persons who use wheelchairs.

VIA

VIA submits that the washroom in the "accessible suite" has all necessary access and fittings for persons using wheelchairs. VIA also states that a personal wheelchair can be used on board so that transfers are not required to access the washroom.

VIA advises that the dimensions of the clear floor space in the "accessible washroom" are 144.8 cm by 162.6 cm (57.01" x 64.01") compared to 88.9 cm wide by 147.3 cm long (35" x 57.99") in the LRC and stainless steel Budd cars. VIA asserts that the space to manoeuvre in the Renaissance trains is "appropriate for most circumstances" and states that "oversize equipment" can be accommodated on LRC trains or through the use of an onboard wheelchair.

VIA advises that the square footage of the "accessible washroom" is 21 sq. ft. compared to 13.5 sq. ft. in the LRC and HEP2 trains.

VIA asserts that the position of the toilet is compliant with the Rail Code and permits easy transfers for a person who uses a wheelchair. VIA further asserts that the toilet in the Renaissance Cars provides for both front and side access and comments that this is superior to VIA's existing fleet of cars, which permit front access only.

Regarding the space in the storage room located behind the washroom and whether this area could be used to increase the available space in the "accessible washroom", VIA advises that it is not possible to use the storage room as this area has already been identified for five fridge cavities for food and beverage carts, compressor and condenser equipment and other non-refrigerated storage. VIA indicates that, in order to provide the current level of VIA-1 service for Corridor day service and supply the dining car between Montréal and Halifax, five carts of food and beverages must be refrigerated in addition to that already refrigerated in the galley. VIA explains that the only area close to the service car galley where refrigeration could be provided for the food and beverage carts is in the service car storage area. VIA advises that the entire storage area will be required for this purpose.

VIA submits that to cause the renovation of cars which are completed and ready to be put into service is not a minor consideration, on the basis that, "...as soon as you touch a washroom, as soon as you move a pipe or a bit of wiring you are redoing the entire car; you might as well start from scratch."

Analysis

Obstacle

The Agency is of the opinion that wheelchair-accessible washrooms should provide sufficient space to allow persons to independently access such facilities. In addition, the Agency notes that the Rail Code provides that the location of the toilet should allow easy transfer for a person in a Personal Wheelchair.

The Agency notes that the CSA Barrier-Free Design Standard specifies a range between 102 cm to 104 cm (40.16" to 40.94") for the transfer space adjacent to a toilet in a wheelchair-accessible washroom. However, the Agency recognizes the inherent space limitations in rail equipment and is of the opinion that a space that is less than the CSA standard is appropriate for trains. More specifically, given that the width of the Personal Wheelchair footprint is 75 cm (29.53"), the Agency is of the opinion that a space that is at least equal to this will provide sufficient space to allow a person in a stationary Personal Wheelchair to transfer from the side to a toilet. This being said, the Agency is of the opinion that additional space to facilitate the alignment of a Personal Wheelchair adjacent to the toilet is desirable.

As noted, a minimum width of 75 cm (29.53") is needed to accommodate a stationary Personal Wheelchair. It is, therefore, the Agency's opinion that a space of at least 75 cm (29.53") in width should be provided beside the toilet to allow a person using a Personal Wheelchair to transfer to it from the side.

According to the diagram of the "accessible washroom" and the dimensions noted in the Agency's Inspection Report, the Agency makes the following observations:

the only area in the washroom where the length of clear floor space required by a Personal Wheelchair, being 120 cm (47.24"), could be accommodated in order to permit a side-transfer to the toilet is in the area located to the right of the toilet extending to the point opposite of which the wall of the sleeper unit protrudes into the washroom;
the width of the washroom at the narrowest point, which, at the washroom entrance, is 114 cm (44.88");
the distance from the inner edge of the flip-up grab bar to the exterior wall of the washroom is 70 cm (27.56");
the centre of the toilet is 35 cm (13.78") from the exterior wall of the washroom;
the width of the toilet is 37 cm (14.57" );
the distance between the nearest edge of the toilet seat to the grab bar is 16.5 cm (6.50") [70 cm - 35 cm - (37 cm x .5)]; and,
the width of the wall between the grab bar in the 'down-position' and the point opposite of which the wall of the sleeper unit protrudes into the washroom is 44 cm ( 17.32") [114 cm - 70 cm].

Based on the foregoing, the Agency finds that the width of the space available for a person using a Personal Wheelchair to effect a side-transfer to the toilet with the grab bar in the 'up-position' and with the wheelchair positioned adjacent to the toilet seat to the right of the toilet, is approximately 60.5 cm (23.82"); the sum of the distances calculated in items 6 and 7 above. Additionally, the Agency finds that the width of the space available for a person using a Personal Wheelchair to effect a side-transfer to the toilet with the grab bar in the 'down-position' with the wheelchair positioned adjacent to the toilet, is approximately 44 cm (17.32"); the distance calculated in item 7 above.

Under either approach, the space available to effect a side-transfer to the toilet is less than 75 cm (29.53") and, as such, does not provide the necessary space to accommodate a stationary Personal Wheelchair.

Based on the foregoing, the Agency finds that the insufficient space beside the toilet in the "accessible suite" to allow a person using a Personal Wheelchair to effect a side transfer to the toilet constitutes an obstacle to the mobility of a person who uses a Personal Wheelchair.

Undueness

It is clear from the pleadings that the purpose of the Renaissance train "accessible suite" is to provide specific features and amenities to accommodate the needs of persons with disabilities, including persons who use wheelchairs. The Agency is of the opinion that in order to preserve the principles of accessible travel, it is essential that persons using Personal Wheelchairs be able to use the "accessible suite" and access and use the toilet in the "accessible washroom" using a Personal Wheelchair.

The difficulties posed to persons using wheelchairs by their inability to fully access the washroom have been detailed in the Agency's obstacle analysis. The Agency is of the opinion that these difficulties are significant enough that they can compromise the ability of persons using wheelchairs to travel on the Renaissance trains.

While the Agency recognizes the importance to persons using wheelchairs of being able to effect a side transfer from a Personal Wheelchair to the toilet, the Agency also recognizes that there are structural and economic implications to VIA of addressing these obstacles, which must be weighed in the Agency's assessment of the undueness of the obstacles.

Based on the evidence on file, the Agency finds that in order to ensure that a person using a Personal Wheelchair can perform a side transfer to the toilet in the "accessible washroom", as a minimum, the washroom would need to be reconfigured. The Agency is of the opinion that the configuration of a wheelchair-accessible washroom is important, as illustrated by the fact that the smaller LRC washrooms are considered by CCD to be wheelchair-accessible, whereas the washrooms in the Renaissance Cars, while larger, pose problems related to access by persons using Personal Wheelchairs.

As to whether a reconfiguration of the "accessible washroom", including the relocation of the toilet to a wall that will accommodate a Personal Wheelchair, would ensure that a person using a Personal Wheelchair could perform a side transfer to the toilet, the Agency notes that the square footage of the "accessible washroom" is significantly greater than that of washrooms on other VIA trains which CCD submitted are accessible to persons using their own wheelchairs. As such, it would appear that there may be sufficient space within the "accessible washroom" to allow VIA to reconfigure it and provide an adequate level of accessibility.

However, in the event that a reconfiguration of the "accessible washroom" would not address the obstacle posed by the present location of the toilet or, in the event that it would compromise access to any of the other fixtures in the washroom, the washroom would obviously need to be enlarged.

In terms of the feasibility of enlarging the "accessible washroom", the Agency notes that VIA did not provide information with respect to whether the unused space which is between the interior wall of the washroom and the service car aisle could be used to increase the available space in the "accessible suite", including the washroom. However, the Agency further notes that, based on the evidence on file, there is nothing to indicate that this space would not be available to enlarge the suite.

Concerning the feasibility of using the storage room in order to enlarge the "accessible washroom" and VIA"s position that the storage room provides the only space close to the existing service car galley where refrigeration can be provided for food and beverage carts and that it is also needed to store various equipment and other non-refrigerated storage, as discussed in the "Space to perform side transfers to the toilet" section, the Agency is of the opinion that VIA has not shown that any inconvenience which may arise out of providing the required storage elsewhere on the train, would significantly impact its operations.

The Agency notes CCD's position that if changes proposed by VIA to improve car interiors and services, such as those to the lounge, can be made economically, there is no reason that similar changes such as changing the size and layout of the "accessible suite" in the service car to make it "accessible" as defined in the Rail Code cannot also be made at comparable costs.

In light of the foregoing, and based on the evidence on file, the Agency finds that there is no evidence to indicate that there are structural or economic impediments that would prevent VIA from either reconfiguring and/or enlarging the "accessible washroom" to provide sufficient space to permit a person using a Personal Wheelchair to perform a side transfer to the toilet. Furthermore, it may be that by reconfiguring or enlarging the "accessible washroom", VIA may be able to address other obstacles identified by the Agency in this washroom, those being the toilet height and the lack of shower. While on balance the Agency did not find these obstacles to be undue, in the interest of optimizing the accessibility of the Renaissance Cars, VIA is encouraged to keep these obstacles in mind as it considers and develops solutions to the other obstacles in the "accessible suite" identified in the Agency's preliminary findings on undueness.

Based on the foregoing, the Agency's preliminary finding is that the insufficient space in the "accessible washroom" to allow a person using a Personal Wheelchair to effect a side transfer to the toilet constitutes an undue obstacle to the mobility of persons who use Personal Wheelchairs.

iii) Turning diameter within the "accessible suite"

Facts

The dimensions of the clear floor space in the sleeper unit located in the "accessible suite" are 136 cm (53.54") in length by 120 cm (47.24") in width.

The clear floor space in the suite's "accessible washroom" measures 151 cm (59.45") in length with a varying width of 137 cm (53.94") at the widest and 114 cm (44.88") at the narrowest area at the entrance to the washroom. This variation is due to the wall at the end of the bunk beds in the sleeper unit extending 60 cm (23.62") into the washroom space. Based on VIA's earlier dimensions of 162.6 cm long by 144.8 cm wide (64.01" x 57.01"), the turning diameter was 84 cm (33.07") in the "accessible washroom".

Positions of parties

CCD

CCD expresses concerns regarding the turning diameters in the sleeper unit and adjoining washroom in the "accessible suite".

With respect to the space in the "accessible suite", Ms. Ringaert concludes that most people will not be able to enter the "accessible washroom" or, if they do, they will not be able to turn around, and that most wheelchair and scooter users would not be able to turn in the sleeper unit. Mr. Woollam asserts that a person using a wheelchair who enters the "accessible washroom" while facing forward will not be able to turn around once inside. Mr. Harding expresses the view that persons using wheelchairs who attempt to turn around in either the sleeper unit or the washroom in the "accessible suite" could only do so with considerable difficulty, involving multiple turns and requiring a high degree of skill and endurance. Mr. Harding submits that many users of typical wheelchairs could not turn in either the sleeper unit or the washroom and would, therefore, have to back in or out, "thus being forced to perform a potentially hazardous manoeuver".

CCD notes that while its experts differed as to whether the turning areas in the Renaissance Cars would preclude "many users of typical chairs" or "most" users of wheelchairs or scooters from being able to successfully turn, it is clear that a very high percentage of wheelchair and scooter users would have to back out of the "accessible washroom" and the "accessible suite". CCD expresses the view that this would be very difficult and, on a busy VIA train in motion, it would pose dangers for both the person using the wheelchair or scooter and other passengers.

In this regard, Ms. Ringaert asserts that an important issue to consider when making a room too small and expecting persons to back out is the safety of the other passengers. Ms. Ringaert explains that with the noise of the train movement, backing out of a room such as the "accessible suite", including the washroom, could be potentially dangerous for other passengers in the case of persons with head and hand controls who often cannot turn to look behind them and who would have difficulty hearing passengers who are behind them.

Concerning what constitutes an adequate turning diameter, CCD notes that the CSA Barrier-Free Design Standard specifies a minimum turning diameter of 150 cm (59") for a person in a Personal Wheelchair. Using the measurements it took during the first inspection, CCD submits that both the washroom, with dimensions of 113 cm wide by 152 cm long (44.49" x 59.84"), and the sleeper unit, with dimensions of 121 cm wide by 140 cm long (47.64" x 55.12"), do not provide this turning diameter for manoeuvring.

With respect to the adequacy of the clear turning diameter provided in the CSA Barrier-Free Design Standard, Mr. Harding expresses the view that turning diameters vary dramatically depending on the model of the mobility aid: scooters require a radius of approximately 100 percent of their diagonal lengths; and an electric wheelchair that is 120 cm (47.24") long would require, on average, a radius of between 80 cm and 120 cm (31.5" to 47.24"), depending on the model. Mr. Harding asserts that a turning diameter of 150 cm (59.06") would preclude many wheelchairs from turning without repeated forward and backward manoeuvring. Furthermore, Ms. Ringaert notes that, in order to accommodate 95 percent of power wheelchairs and scooters, the turning diameter should be increased to 322.2 cm (126.85") but that, as a compromise and, until further research can be conducted, a turning diameter of 225 cm (88.58") is recommended.

CCD further sets out its concerns regarding the turning diameter of the "accessible washroom" in terms of the difficulties persons who use wheelchairs would encounter while trying to access and use the toilet. Mr. Woollam indicates that, for most transfers to the toilet, a person using a wheelchair would need to enter the washroom while backing-up from the vestibule. Mr. Woollam adds that, for other transfers, a forward entry would need to be followed by a reverse exit as far as the vestibule. Prior to VIA expanding the door widths in the "accessible suite" to 75 cm (29.53"), Mr. Woollam expressed the opinion, that the "...whole operation becomes mind boggling when one considers the moves and manoeuvring required to approach and unlock and open the door to the suite then turning around to pass backwards through a 71 cm (28") wide door opening". In his report, Mr. Ross expresses the view that it is impossible for many people who use wheelchairs and dangerous for others to exit the washroom while in reverse and travel the distance necessary to turn around.

Regarding the feasibility of making modifications to the "accessible suite", Mr. Woollam submits in his report that interior walls, such as those forming bedrooms and washrooms, do not contribute to the structural strength of the vehicle and can, therefore, be modified or removed without affecting the structural integrity of the vehicle. Mr. Woollam further submits that the economic viability of making necessary modifications to permit universal access is primarily dependent upon whether they involve structural members that provide the inherent strength to the car. Mr. Woollam notes that while structural details were not initially provided by VIA, information gained during one of the inspections of the cars on September 20, 2001 and subsequently provided by VIA, indicate that the strength of the cars is developed by below floor longitudinal members and the outer profile walls of the car body itself. Mr. Woollam expresses the view that if changes proposed by VIA to improve car interiors and services, such as those to the lounge, can be made economically, there is no reason that similar changes such as changing the size and layout of the "accessible suite" in the service car to make it "accessible", as defined in the Rail Code, cannot also be made at comparable costs.

CCD submits that every part of the service car, with the exception of the "accessible suite", is being modified in terms of walls and uses. CCD expresses the view that it is the proper time to reconfigure the "accessible suite" that may or may not involve additional space and comments that, because VIA did not respond to a question posed by the Agency regarding the feasibility of using a space between the washroom and the service car aisle in order to increase the available space in the "accessible suite", the intended use for this space is not known. Nonetheless, CCD asserts that there is enough space to reconfigure the "accessible suite" in order to take into account the needs of persons who use wheelchairs.

CCD concludes that the "accessible washroom" was designed for use by a person using an on-board wheelchair and expresses the view that the only type of personal wheelchair which might be able to manoeuvre in the "accessible washroom" is a very small child's wheelchair. CCD comments that, by comparison, the washroom designated as being accessible in the existing VIA-1 coach cars is considered by it to be accessible even though it is smaller in area than the "accessible washroom" in the Renaissance Cars. CCD explains that the existing VIA-1 washroom closely compares to the one prescribed under the Americans with Disabilities Act. CCD illustrates its point by providing a diagram of an "Intercity Rail Car" from the United States Access Board's guidelines on Intercity Rail Cars and Systems, including an "accessible rest room", which depicts a clear floor space in front of the area containing the toilet and sink of 89 cm by 152.4 cm (35" x 60"). CCD notes that VIA's existing cars were retrofitted so that washrooms could be made wheelchair-accessible and that comparable levels of modification to the Renaissance Cars are required to address the issues CCD raises in its application.

VIA

Following the Agency's first inspection of the Renaissance Cars, VIA advised that the dimensions of the clear floor space in the "accessible sleeper unit" were 111.7 cm wide by 137.2 cm long (43.98" x 54.02") and the turning diameter was 120 cm (47.24"). In addition, VIA advised that the dimensions of the clear floor space in the "accessible washroom" in the Renaissance Cars are 144.8 cm wide by 162.6 cm long (57.01" x 64.01") as compared to 88.9 cm wide by 147.3 cm long (35" x 57.99") for the accessible washroom in the LRC and stainless steel Budd cars.

In response to CCD's concerns regarding the lack of manoeuvring space in the washroom, VIA comments that the space is "appropriate for most circumstances" and states that "oversize equipment" can be accommodated on LRC trains or through the use of an on-board wheelchair. In this regard, VIA asserts that the Renaissance Cars are existing cars and, as such, they qualify for consideration under section 1.3.3 of the Rail Code, which provides that, if as a result of structural limitations of an existing coach car, the washroom cannot be accessible to a person in a Personal Wheelchair, it should at least be accessible to a person in an on-board wheelchair.

VIA advises that the turning diameter in the sleeper unit is 120 cm (47.24") and the turning diameter in the washroom is only 84 cm (33.07"), due to the fact that the location of the toilet limits the clear turning diameter of the overall washroom floor area.

VIA makes a comparison between the accessible washrooms in the Renaissance Cars and those in its other equipment and notes that the square footage of the "accessible washroom" in the Renaissance Cars and in the LRC and HEP 2 trains is 21 sq. ft. and 13.5 sq. ft., respectively. However, VIA expresses the view that the differences between the trains in operation and the Renaissance Cars are not relevant to any analysis of "undue obstacle". VIA asserts that the Renaissance Cars constitute an addition to VIA's fleet in that they provide different options for accessibility while the old options remain.

With respect to whether the unused space between the "accessible washroom" and the service car aisle and the space in the storage room located behind the washroom could be used to increase the available space in the "accessible suite", including the washroom, VIA advises that it is not possible to use the storage room as this area has already been identified for five fridge cavities for food and beverage carts, compressor and condenser equipment and other non-refrigerated storage. VIA explains that the only area close to the service car galley where refrigeration could be provided for the food and beverage carts is in the service car storage room. VIA advises that the entire storage area will be required for this purpose.

VIA further submits that "...as soon as you touch a washroom, as soon as you move a pipe or a bit of wiring you are redoing the entire car; you might as well start from scratch."

Analysis

Obstacle

The Agency notes that this principle is reflected in the Rail Code, which provides that the floor space of wheelchair-accessible sleeper units and washrooms in new and refurbished rail cars should permit a person in a Personal Wheelchair to enter and use all the facilities contained therein.

As set out in the "Preliminary Issues" section, the Agency has already rejected VIA's position under the Rail Code that, as existing rolling stock, the "accessible washroom" of the Renaissance Cars need only accommodate an on-board wheelchair in that the Agency has already determined that the Renaissance Cars constitute new equipment.

Given the foregoing, it is clear that the floor space of the "accessible suite" needs to permit a person using a Personal Wheelchair to enter and use all the facilities contained therein. It is also evident that, in order for this to be achieved, the floor space must provide adequate space to permit a person to turn his/her wheelchair around within the suite.

The Agency notes CCD's assertion that as a result of the lack of adequate turning diameter in the sleeper unit and/or the washroom, many persons who use wheelchairs will have to back out of or into both areas, particularly to access and use the toilet within the unit. The Agency also notes CCD's concerns that this would be very difficult and dangerous in some cases for both the person using the wheelchair as well as for other passengers. Furthermore, while the Agency acknowledges that it is often necessary for persons using wheelchairs to travel in reverse while manoeuvring and positioning their wheelchairs, the Agency recognizes that travel can be much more difficult and possibly dangerous for some persons using wheelchairs who must travel a significant distance in reverse, especially when narrow doorways are present along the route.

In this particular case, the Agency notes that the distance that a person using a wheelchair would need to travel while in reverse in order to back out of the "accessible suite" as far as the vestibule or to back into the washroom from the vestibule is not necessarily significant. However, to do so, a person using a wheelchair would be required to travel in reverse through the doors of both the washroom and the sleeper unit, both of which the Agency, as set out in the "Doors in the 'Accessible suite'" section, has found, as a result of their narrow width to constitute obstacles to the mobility of persons using Personal Wheelchairs.

Additionally, the Agency notes that as a result of the lack of adequate turning diameter in the "accessible suite", a person using a Personal Wheelchair will need to exit the suite and then perform a series of backward and forward manoeuvres within the vestibule, possibly using space available in the opening to the gangway and in the service car aisle, before being able to turn his/her wheelchair around. A person attempting to do so during periods when passengers are entering or exiting the train through the vestibule could encounter significant difficulties and possibly be unable to turn their wheelchair around at such times. The Agency is of the opinion that such difficulties and the requirement to execute a series of manoeuvres in a confined space in order to be able to turn a wheelchair around to use the washroom within the suite are inconsistent with the principle of safe and easy access, which is reflected in the Rail Code and considered by the Agency to be an important principle of accessibility.

Although VIA has stated that personal wheelchairs will be stored in either the baggage or service cars, the Agency has already determined, as set out in the "Space in the 'accessible suite'" section, that persons who use Personal Wheelchairs should be able to retain their wheelchair in the "accessible suite". In terms of the use of the "accessible suite" at night in order for persons who use wheelchairs to use the washroom, they will be required to exit the suite and turn their wheelchair around in the vestibule. The Agency is of the opinion that being required to exit the "accessible suite" at night in order to turn a wheelchair around to be able to access and use washroom facilities is contrary to the accessibility principles regarding the privacy, security and dignity of persons with disabilities.

In light of the foregoing, the Agency is of the opinion that there needs to be an adequate turning diameter within the "accessible suite", either in the sleeper unit or in the washroom.

In terms of what constitutes an adequate turning diameter, while the Rail Code defines a Personal Wheelchair as requiring a minimum clear floor area of 75 cm by 120 cm (29.53" x 47.24"), as previously noted in the "Doors in the 'Accessible suite'" section, the Agency is of the opinion that these dimensions do not reflect the space needed in order to permit a person using a Personal Wheelchair to manoeuvre within wheelchair-accessible areas, such as washrooms or sleeper units, and access and use the facilities contained therein. In terms of the space needed in order to permit a person using a Personal Wheelchair to manoeuvre within wheelchair-accessible areas and access and use the facilities contained therein, the Agency notes that the Rail Code also defines a Personal Wheelchair as requiring a minimum clear turning diameter of 150 cm (59.06") in diameter.

The Agency notes CCD's evidence that the amount of turning diameter required to accommodate a wheelchair can vary dramatically depending on the model of the wheelchair. In this regard, given the variability in the amount of turning diameter required by the various types of wheelchairs and, in recognition of the expertise of the Canadian Standards Association in establishing appropriate dimensions and design features for buildings and other facilities which are meant to ensure access and use by persons with disabilities, the Agency is of the opinion that the CSA Barrier-Free Design Standard provides the most credible and reliable indicator of what turning diameter will enable a person using a wheelchair to turn his or her wheelchair around.

The CSA Barrier-Free Design Standard specifies a minimum clear turning diameter of 150 cm (59.06") for a wheelchair for which the requirements for clear floor space are the same as those for a Personal Wheelchair. This turning diameter is consistent with the Rail Code. In light of this, the Agency is of the opinion that either the sleeper unit or the washroom in the "accessible suite" needs to provide, as a minimum, a clear turning diameter of 150 cm (59.06").

VIA advised that the turning diameters in the sleeper unit and in the washroom in the "accessible suite" are 120 cm (47.24") and 84 cm (33.07") in diameter, respectively. Although the dimensions of these areas have changed slightly, VIA did not provide revised dimensions for the turning diameters in these areas. However, in view of the fact that the dimensions of the sleeper unit and the washroom did not appreciably increase, the Agency is of the opinion that the turning diameters in both these areas remain less than 150 cm (59.06").

Given the foregoing, the Agency finds that the lack of a 150-centimetre (59.06") turning diameter in either the sleeper unit or the washroom within the "accessible suite" constitutes an obstacle to the mobility of persons who use Personal Wheelchairs.

Undueness

The Agency has concluded that the "accessible suite" poses an obstacle to persons who use Personal Wheelchairs in that it does not provide adequate space in either the sleeper unit or the washroom to permit a person using a Personal Wheelchair to turn the wheelchair around, such that a person who tries to access the washroom facilities in the suite would need to either back into the unit or back out of the unit, presenting increased risk from the difficulties and possible danger to both the person as well as to other passengers in the vestibule.

With respect to the structural feasibility of reconfiguring and/or enlarging the "accessible suite", the Agency notes CCD's assertion that every part of the service car, with the exception of the "accessible suite", is being modified in terms of walls and uses and that there is enough space to reconfigure the "accessible suite" in order to take into account the needs of persons who use wheelchairs. However, the Agency also notes CCD's submission that because VIA did not respond to the Agency's interrogatory on the unused space between the suite and the service car aisle, it is not known whether this additional space is available.

Concerning the feasibility of using the storage room in order to enlarge the "accessible washroom", the Agency notes VIA's position that the storage room provides the only space close to the existing service car galley where refrigeration can be provided for food and beverage carts and that it is also needed to store various equipment and other non-refrigerated storage. The Agency is of the opinion, however, that VIA has not demonstrated that these storage needs cannot be met by using other space on the train. In fact, the Agency finds that VIA's explanation implies, in part, that VIA's rationale for needing this space to provide refrigeration for food and beverage carts and to store various equipment and other non-refrigerated storage is one of convenience. While the Agency recognizes that storage space is needed for these items, and that providing such storage close to the service car galley would prove convenient, the Agency is of the opinion that convenience, alone, cannot outweigh the importance of providing accessible rail transportation to persons with disabilities. Additionally, the Agency is of the opinion that inconvenience does not translate into infeasibility and notes that VIA has not shown that any inconvenience which may arise out of providing the required storage elsewhere on the train, would significantly impact its operations.

With respect to the economic feasibility of reconfiguring and/or enlarging the "accessible suite" to provide the clear floor space for an adequate turning diameter within the suite, VIA has made no submissions other than the general statement that "... as soon as you touch a washroom, as soon as you move a pipe or a bit of wiring you are redoing the entire car; you might as well start from scratch." CCD has countered that, if changes made by VIA to improve car interiors and services can be accommodated economically, there is no reason that similar changes such as changing the size and layout of the "accessible suite" to make it accessible as defined by the Agency in the Rail Code, cannot also be made at comparable costs.

In conclusion, the Agency notes that VIA has not provided any compelling evidence to support the position that to reconfigure and/or enlarge the "accessible suite" to provide the clear floor space required to provide an adequate turning diameter would be structurally or economically infeasible or impracticable.

Based on the foregoing and the evidence filed by VIA, the Agency is not convinced that the obstacle presented by the lack of a 150 cm (59.06") turning diameter in the "accessible suite" cannot be eliminated. As such, the Agency's preliminary finding is that this constitutes an undue obstacle to the mobility of persons using Personal Wheelchairs.

Top of Page

5. Stairs

Facts

Details on the stairs upon exiting the Renaissance trains are as follows:

Depth of steps:

First step: 73.5 cm (28.94") wide x 26 cm (10.24") deep
Second step: 73.5 cm (28.94") wide x 22 cm (8.66") deep
Third step: 80 cm (31.50") wide x 23 cm (9.06") deep

Height of risers (distance between steps):

between the car floor and first step: 25.5 cm (10.04") - closed riser
between the first and second step: 24.5 cm (9.65") - open riser
between the second and third step: 24 cm (9.45") - closed riser

The step box measures 36 cm x 36 cm (14.17"x 14.17") and is 28 cm (11.02") high.

Positions of parties

CCD

CCD raises concerns regarding two aspects of the stairs: (i) riser heights and depths of the steps; and the lack of closed stair risers.

i) Riser heights and depths of the steps

Mr. Woollam submits that variations in steps would have a significant impact on passengers, in general, but particularly on those with limited mobility or sight.

CCD notes that the Rail Code provides that the first step to the platform should be a normal step with the same rise and run as subsequent steps.

Prior to the second inspection of the Renaissance Cars, Mr. Woollam notes in his report that he did not have the opportunity to see the relationship of the lowered steps to a standard platform. Mr. Woollam states that it is essential that the relationship of the first step with the platform be a normal step, with the same rise and run as subsequent steps.

Mr. Fisher submits in his report that the steps that fold down when the Renaissance Cars are at a low level platform may not extend close enough to the platform. Mr. Fisher notes that it is standard practice to use a portable stool or step on a low level platform where the steps do not completely reach.

ii) Lack of closed stair risers

Mr. Fisher comments that it appears that, contrary to section 1.2.4 of the Rail Code, the stair risers are not closed.

VIA

i) Riser heights and depths of the steps

Prior to the issuance of the first inspection report of the Renaissance Cars, VIA advised that the height to each of the three steps is 25.4 cm (10").

VIA states that there is no "standard" platform height on the VIA system and notes that all platforms have some slight variations in height from one to another. VIA submits that a better reference to use would be the height from "top of rail", which it explains is a standard reference when measuring railway rolling stock heights.

VIA advises that a "typical 10 inches high VIA Rail stepping box" will be used to reach the first step up/last step down for the Renaissance trains. VIA submits that the use of a 25.4 cm (10") VIA stepping box means that there will be 5 riser increments of exactly 25.4 cm (10") each. VIA submits that the three-step arrangement, when used with an existing VIA Rail stepping box, will provide safe boarding similar to that offered on other VIA trains.

VIA provides the following chart illustrating the height from the "top of rail" to the first step up from/last step down, which will be reached using VIA's "typical" stepping box, in addition to the riser heights of each of the other steps, which, in the case of the Renaissance Cars are each 25.4 cm (10"). The same information is provided in respect of VIA's other fleets.

	Height to 1^st Step	Height to 2^nd Step	Height to 3^rd Step	Height to 4^th Step	Height to Vestibule
LRC Cars	15.5"	24"	32.5"	41"	50"
HEP2 Cars	18"	26"	34"	42"	50"
Renaissance Cars	20"	30"	40"	None	50"

VIA notes that a contrasting colour strip that runs the full width of the step nosing will be added. Finally, VIA notes that on-board personnel will, upon request, provide assistance to persons with disabilities.

ii) Lack of closed stair risers

VIA advises that the initial release of the specification for the Renaissance Cars beyond Phase I calls for a redesign of the stairs to address low platform interface and that the scope of work for the cars beyond Phase I calls for closed stair risers.

Analysis

Obstacle

i) Riser heights and depths of the steps

The Agency recognizes the importance of uniform stair risers and depths to persons with disabilities, especially those with visual impairments. Significant differences in riser heights may make it more difficult for such persons to negotiate stairs as their sense of where the next step should be may be affected by changes in riser heights. Similarly, persons with visual impairments may have more difficulty knowing where to place their feet if there are significant differences in the depths of steps.

The Agency notes that the foregoing is reflected in the Rail Code, which provides that stairs on a passenger rail car should have uniform riser heights and uniform step depths. While the Agency recognizes that the risers on the retractable stairs are not entirely uniform in height, the Agency notes that they only vary in height by 1 cm (.39") between the first and second steps and by .5 cm (.20") between the second and third steps in exiting the car. Given this, and based on the evidence on file, the Agency is of the opinion that such slight variations are unlikely to cause persons with disabilities difficulty in negotiating the steps.

The Agency also notes CCD's concern that the first step up from or last step down to the platform should have the same riser height and depth as the retractable steps. In this regard, the Agency notes that the Rail Code provides that the first step up/last step down be of a height that does not exceed the uniform riser height. The Code further provides that, if the criterion regarding the first step up/last step down cannot be satisfied, the rail carrier should provide a step box.

The Agency notes that VIA is to provide a portable stepping box that will be used to reach the first/last step from low-level platforms and that its on-board personnel will, upon request, provide assistance to persons with disabilities. While VIA indicated that the stepping box to be used with the Renaissance trains will be 25.4 cm (10") in height such that all the riser increments will be exactly 25.4 cm (10"), the Agency notes that the stepping box that was examined during the last inspection measured 28 cm (11.02") in height. Although the Agency recognizes that it is desirable that the height of the step box be the same as the subsequent riser heights, in view of the fact that the difference by which the height of the step box exceeds the subsequent riser heights is only 2.54 cm (1"), the Agency is of the opinion that this provides an acceptable level of accessibility, particularly in view of VIA's submission that its on-board personnel will, if requested, provide assistance to persons with disabilities. Given this, and based on the evidence on file, the Agency is of the opinion that these variations are unlikely to cause persons with disabilities difficulty in negotiating the steps.

However, the Agency is also of the opinion that the actual height of stair risers and the depth of steps are very important in determining whether a person with a disability will have difficulty in ascending and descending stairs. Steps which are shallow and for which the risers are high result in the stairs being steep, which pose obvious difficulties for persons with disabilities, including those with mobility and visual impairments. In fact, steep stairs can be hazardous for all persons, not only those with disabilities.

The Agency notes that the Rail Code refers to the CSA Barrier-Free Design Standard, which specifies that stair risers should not exceed 18 cm (7.09") in height and that steps should be at least 28 cm (11.02") deep. The Agency notes that both the height of the stair risers and the depth of the steps do not meet the CSA standard. Specifically, the average riser height of 24.7 cm (9.72") exceeds the maximum specified in the Standard by 6.7 cm (2.64"). Additionally, the most shallow step falls short of the minimum depth specified in the Standard by 6 cm (2.36").

While the Agency recognizes that there are space limitations that may restrict the dimensions of certain train features, the Agency is of the opinion that there is no evidence on file as to why the Renaissance car stairs cannot meet the CSA specifications.

In light of the foregoing, the Agency finds that the riser heights and depths of the steps constitute obstacles to the mobility of persons with disabilities.

ii) Lack of closed stair risers

The Agency recognizes the importance of closed stair risers to persons with disabilities, in particular, those with visual impairments regardless of whether they are accompanied by guide dogs. Closed stair risers serve as an orientation tool, allowing persons who are blind or visually impaired to determine the depth of the steps with their foot to help guide them up or down stairs. In this regard, their ability to determine the depth of the steps provides them with both a real and a greater sense of safety and security when boarding and deboarding. An open riser increases the possibility that a person with a visual impairment will place his or her foot beyond the step through the open riser and then trip trying to lift his or her other foot onto the next step. Furthermore, open stair risers permit light to come through from behind, resulting in a change in lighting, which can make it more difficult for persons with partial vision to negotiate stairs. Finally, guide dogs will frequently try to avoid stairs that have open risers, thereby causing difficulties for their owners as they try to rely on them for guidance in using stairs.

In recognition of the importance of the foregoing, section 1.2.4 of the Rail Code provides that stairs on a passenger rail car should have closed risers.

The Agency notes that, given that the Renaissance Cars coming into service beyond Phase I will have closed stair risers, 12 cars will not have closed risers. The Agency is of the opinion that the lack of closed risers will make it more difficult for persons who are blind or passengers with impaired vision, including those who use guide dogs, to ascend and descend the stairs on the Renaissance Cars. Additionally, the inconsistent availability of closed stair risers on different Renaissance train consists may cause added difficulties to persons with disabilities who rely on them to safely and securely navigate the stairs as such inconsistencies make it impossible for persons who are blind or visually impaired to predict from one trip to the next whether this orientation tool will be available. Compounding this problem is the fact that persons who are blind or visually impaired will not be able to determine in advance whether they should request assistance in order to safely negotiate the stairs.

In light of the above, the Agency finds that the lack of closed stair risers constitutes an obstacle to the mobility of persons with disabilities.

Undueness

The Agency has found that the riser heights and depths of the steps in addition to the lack of closed stair risers on the Renaissance trains constitute obstacles to the mobility of persons with disabilities.

As discussed in the preceding obstacle analysis, the Agency recognizes the importance of steps that are of a height and depth that permit safe boarding and deboarding by persons with disabilities and the importance of closed stair risers to persons with disabilities, including those who are blind or who have impaired vision and those who use guide dogs. The Agency also recognizes the importance of the ability of persons with disabilities to maintain as much independence as possible in their use of the federal transportation network.

The difficulties that can arise out of the above-noted obstacles for persons with disabilities, have been described in detail in the preceding obstacle analysis. The Agency is of the opinion that the difficulties that result from these obstacles are significant enough that they can compromise the ability of persons with disabilities to travel on the Renaissance trains.

The Agency notes that the Rail Code provides that if structural limitations of a passenger rail car prevent any of the specified criteria regarding stairs from being satisfied, a rail carrier should provide assistance, if requested, to a person with a disability in ascending and descending the stairs.

Notwithstanding the importance of stairs that are of the appropriate dimensions and that have closed stair risers to persons with disabilities, the Agency recognizes that there are structural and economic implications to VIA of addressing these obstacles that must be weighed in the Agency's assessment of the undueness of the obstacles. Regarding the riser heights and step depths, the Agency notes that neither VIA nor CCD filed any submissions pertaining to the structural or economic implications of modifying the steps to conform with the standards specified in the CSA Barrier-Free Design Standard. Regarding the structural implications of installing closed risers on the Renaissance trains that presently do not have them, in light of VIA's intention to install closed stair risers in the trains beyond Phase I, it is apparent that it is feasible for VIA to install closed stair risers on the Renaissance Cars in Phase I. The Agency notes that neither VIA nor CCD filed any submissions regarding the economic implications of installing closed stair risers on the Renaissance Cars in Phase I.

In light of the foregoing, the Agency's preliminary finding is that the obstacles posed by the riser heights, stair depths and the lack of closed stair risers constitute undue obstacles to the mobility of persons with disabilities, including those who are blind or have partial vision.

Top of Page

6. Space in the coach cars for service animals

Facts

The seats in the economy and VIA-1 coach cars were all initially mounted on platforms with a sloping surface to provide space under the seats to store hand luggage. However, VIA has modified the last row on the double seat side in each of these cars by removing the single seat and the raised platform, installing a wheelchair tie-down mechanism in the floor, and by installing a modified, removable seat at floor level on top of the wheelchair tie-down mechanism. This removable seat has been identified by VIA as the seating in coach cars for persons with disabilities who travel with a service animal. However, this seating option will not always be available in the economy coach cars as VIA will, upon request, remove this seat to provide a wheelchair tie-down space.

As a result of the lowering of the single seats in the last row of the economy and VIA-1 coach cars, a different supporting seat structure was installed on the double seats in front of the removable seat. The lower part of the supporting seat structure is now open to the removable seat. The double seats in the second last row directly in front of the single removable seat have a supporting seat structure that provides space at floor level that measures 34 cm deep by 113 cm wide and 47 cm high (13.38" x 44.49" x 18.50").

Service animals can also be accommodated in the "accessible suite" in the service car and in each of the bedrooms in the sleeper cars, where available.

Positions of parties

CCD

CCD notes that the Rail Code requires each car to have a number of passenger seats that provide enough floor space for a service animal. CCD notes, however, that there is only one seat in each coach car available to persons travelling with service animals and submits that because this seat may be adapted as a wheelchair tie-down, there is space for a person using a wheelchair or for a person with a service animal, but not both.

CCD submits that VIA is not adhering to its own guidelines for passenger rail cars as set out in VIA's accessibility guidelines for passenger railcars with respect to spaces for guide dogs, which provide that guide dogs accompanying passengers who are blind should be provided with an appropriate space.

VIA

Although VIA had initially indicated that the removable seats in each of the economy and VIA-1 coach cars would be removed, upon request, to provide a wheelchair tie-down space to persons who want to remain in their wheelchair, VIA clarifies in a later submission that the single seat in the 17^th row on the double seat side in the VIA-1 coach cars on the Corridor day train was lowered only to provide space for a service animal as required by the Rail Code. With respect to the modifications made to the end of the economy coach cars, VIA states that the seat base in the last row was removed to also comply with the Rail Code regarding space in each rail car for a service animal. Prior to the measurements taken during the last inspection of the Renaissance Cars, VIA advised that the dimensions of the space to accommodate service animals are 42.54 cm high by 52.39 cm deep by 113.03 cm wide (16.75" x 20.63" x 44.5").

VIA submits that the combination of the LRC equipment and the Renaissance equipment, with its service car, provides a range of options for persons travelling with service animals, including persons who also use wheelchairs.

Analysis

Obstacle

The Agency is of the opinion that persons with disabilities who travel with service animals, including persons who wish to remain in their own wheelchairs, must be able to obtain seating in a passenger rail car that allows them to keep their service animal with them at their seat or in the wheelchair tie-down space.

The Agency notes that the foregoing is reflected in the Rail Code which provides that each passenger rail car (other than a sleeping car) should have a number of passenger seats that each provides enough floor space for a service animal to lie down. Furthermore, the Rail Code defines 'wheelchair tie-down' specifically as a space to accommodate both an occupied Personal Wheelchair and a service animal.

Presently, persons who travel with service animals on VIA's existing equipment have a wide choice of seats they can occupy and there are a number of these spaces available in coach cars so that persons who use service animals can travel together. However, these options have been significantly reduced in the Renaissance trains with the introduction of seats installed on a raised platform that slopes to provide storage space for hand luggage. As a result of this design feature, only the following for areas could potentially accommodate persons who travel with service animals:

the "accessible suite" in the service cars;
the single removable seat in the economy coach cars;
the single removable seat in the VIA-1 coach cars; or
in each sleeper unit in the sleeper cars.

In addition, the wheelchair tie-down should accommodate a person in a Personal Wheelchair and a service animal; however, in the "Wheelchair tie-downs" section above, the Agency has already made a preliminary determination that the lack of space in the wheelchair tie-down area to accommodate a person with a service animal who also wishes to use the wheelchair tie-down constitutes an undue obstacle. Thus, the Agency does not consider persons who travel with service animals and who wish to use the wheelchair tie-down in this analysis.

Although the space in the sleeper car and the space in the "accessible suite" in the service car will accommodate two persons travelling together with service animals, the Agency notes that these spaces may not always be available nor may they be considered by some persons to be appropriate to share.

The Agency notes that there is only one space in each of the coach cars to accommodate a person who uses a service animal and that two or more persons travelling together with service animals will not be able to sit together in the coach cars. Furthermore, the Agency notes that the space in the economy coach cars to accommodate a person with a service animal may not be available should it be reserved by a person who wishes to use the wheelchair tie-down. The Agency recognizes that the lack of a dedicated space in the economy coach cars to accommodate persons travelling with service animals is contrary to the Rail Code and represents a significant reduction in travel options for persons who travel with service animals.

In light of the foregoing, the Agency finds that the insufficient space in the economy coach cars to accommodate persons travelling with service animals constitutes an obstacle to their mobility.

Undueness

While the Agency has already considered the positions of the parties regarding the feasibility of removing the raised platform in the economy coach cars and found that, on balance, it is prepared to accept that VIA could address the obstacle posed by the raised seating with the level of assistance it provides to passengers using the cars, this is not the case for service animals as the use of the sloping, raised platform for the seats in the coach cars means that there is simply no level space for service animals around these seats. In view of this, the obvious solution to this obstacle would involve the removal of the platform from other seats in the coach cars. While this solution is being raised in the context of providing more space to accommodate persons who use service animals, the Agency also notes that it would serve to provide VIA with more flexibility to address the needs of other persons with disabilities who may have difficulty accessing the seats on the raised platform, as discussed above in the "Height of seats and 25-centimetre (9.84") step-up onto the seat platform in the coach cars" section.

VIA has already modified the coach cars by removing the raised platform under one seat in the 17th row to permit the installation of both a wheelchair tie-down mechanism and a removable seat. Furthermore, VIA has also modified the supporting seat structure under the double-seats in the 16th row. It is apparent to the Agency from this evidence that the removal of portions of the platform may be structurally and economically feasible. The Agency is of the opinion that the removal of another portion of the platform in the coach cars to permit a minimum of two more seats to be installed at floor level to provide adequate space for service animals would be a reasonable accommodation for persons who travel with service animals as it would restore some of the travel options that they presently have and there is no evidence to suggest that this can not be done.

Based on the foregoing and the evidence before the Agency at this time, the preliminary finding of the Agency is that the insufficient space in the economy coach cars to accommodate persons travelling with service animals constitutes an undue obstacle to their mobility.

Top of Page

7. Train consists

Facts

At the time of VIA's purchase, 139 Renaissance Cars were at different stages of construction. The following sets out the different stages, as well as VIA's intended use for the cars. Although some of the sleeper and service cars are referred to as not having been started, their body shells were finished, painted and fitted with windows and floors at the time of purchase.

72 sleeper cars:
- at the time of purchase, 20 completed, 11 started and 41 not started
- 44 will be completed and put into service, which will include 27 sleeper, 11 baggage, and 6 dining cars
- 13 will be built for growth, peak demand periods and damage replacement, which will include 8 sleeper, 3 baggage and 2 dining cars
- 15 will remain as shells to be stored long term although VIA indicated that the distribution of sleeper, service, baggage and dining cars that will be built for growth, peak demand periods versus the number of sleeper cars that are to remain as shells might be adjusted based on available spare parts.
47 coach cars:
- at the time of purchase, 36 completed and 11 not started
- all will be completed and put into service, which will include 14 VIA-1 coach cars and 33 economy coach cars
20 service cars:
- at the time of purchase, 8 completed, 2 started and 10 not started
- 19 will be completed and put into service
- 1 will be built for growth, peak demand periods and damage replacement

VIA's plan is to operate 110 Renaissance Cars in various train consists in one of four markets as set out below:

Montréal-Toronto overnight service (Montréal-Toronto overnight train consist)
- 12 rail cars - 2 train sets of 6 cars each, marshalled (from the back of the train to the front of the train) into the following consist:
  - 3 sleeper cars
  - 1 service car, marshalled with the "accessible suite" immediately adjacent to a sleeper car and which is identified as a "wheelchair accessible suite and washroom"
  - 2 economy coach cars, each with a wheelchair tie-down space without washroom access
Québec-Windsor Corridor day service (Corridor day train consist)
- 42 rail cars - 7 train sets of 6 cars each, marshalled (from the back of the train to the front of the train) into the following consist:
  - 2 VIA-1 coach cars
  - 1 service car marshalled with the "accessible suite" immediately adjacent to a wheelchair tie-down in a coach car, which is identified a "wheelchair accessible washroom"
  - 2 economy coach cars
  - 1 baggage car
Montréal-Halifax service (Ocean Train consist) that spans day and night
- 47 rail cars - 3 train sets of 11 cars each (Block 1) and 2 train sets of 7 cars each (Block 2), marshalled (from the back of the train to the front of the train) into the following consists:
  - Block 1, marshalled (from the back of the train to the front of the train) as follows:
    - 4 sleeper cars - 1 service car, marshalled with the "accessible suite" immediately adjacent to a sleeper car, which is identified as a "wheelchair accessible suite and washroom"
    - 1 dining car
    - 1 service car marshalled with the "accessible suite" immediately adjacent to the wheelchair tie-down in a coach car, which is identified as a "wheelchair accessible washroom"
    - 3 economy coach cars
    - 1 baggage car
  - Block 2, marshalled (from the back of the train to the front of the train) as follows:
    - 3 sleeper cars
    - 1 dining car
    - 1 service car marshalled with the "accessible suite" immediately adjacent to the wheelchair tie-down in a coach car, which is identified as a "wheelchair accessible washroom"
    - 2 economy coach cars
  - These cars represent the short turning of block at Moncton during peak times.
- Montréal-Gaspé service (Gaspé train consist) that spans day and night
  - 9 rail cars - 1 train set of 9 cars, marshalled (from the back of the train to the front of the train) into the following consist:
    - 3 sleeper cars
    - 1 service car marshalled with the "accessible suite" immediately adjacent to a sleeper car, which is identified as a "wheelchair-accessible suite and washroom"
    - 1 dining car
    - 1 service car marshalled with the "accessible suite" immediately adjacent to a wheelchair tie-down in a coach car, identified as a "wheelchair accessible washroom"
    - 2 economy coach cars
    - 1 baggage car

The floor-level removable seat will be located at the rear of the economy and VIA-1 coach cars and has been identified by VIA as meeting the needs of either a person travelling with a service animal in economy or VIA-1 coach cars, or a person who wants to remain in his/her wheelchair in the economy coach cars, in which case this economy coach car seat is removed to provide a wheelchair tie-down.

Each train consist is comprised of at least one service car, which contains a "wheelchair accessible suite" at one end of the car. Although the suite includes both a washroom and a sleeper unit, its use differs depending on the number of service cars in a consist, whether it is a day and/or night service, as well as the marshalling of the service car. When the service car is marshalled such that the suite is immediately adjacent to a sleeper car, VIA identifies the suite as a self-contained "wheelchair accessible suite and washroom". On the other hand, when the marshalling of the service car results in the suite being immediately adjacent to the end of an economy coach car where a wheelchair tie-down space is located, VIA identifies the suite as a "wheelchair accessible washroom" and indicates its intention to not permit a person with a disability to reserve the suite.

The following sets out the different uses of the "accessible suite" and the "wheelchair accessible washroom" as they relate to the day and/or night services:

Corridor day trips (1 service car):

passengers will not be able to book the "accessible suite"; and
the "wheelchair accessible washroom" will be available for the exclusive use of passengers who use a wheelchair and who occupy a wheelchair tie-down space in an economy coach car.

Montréal-Toronto overnight trips (1 service car):

a person with a disability who pays for the use of the "accessible suite" will have the exclusive use of the "wheelchair accessible washroom"; and
if a person with a disability books passage to use a wheelchair tie-down space in an economy coach car, and the "accessible suite" has not been reserved by a person with a disability, he/she will automatically be upgraded to the "accessible suite" at no additional cost

Trips that span day and night (multiple service cars):

the "wheelchair accessible washrooms" in some of the service cars will be available to persons with disabilities who reserve the use of an "accessible suite" and others will be for the exclusive use of passengers who use a wheelchair and travel in an economy coach car.

Positions of parties

CCD

CCD notes that there are many more coach and sleeper cars than there are service cars and asserts that inaccessible coach and sleeper cars will be in operation given that they will not necessarily be part of a consist that has a wheelchair-accessible washroom. CCD states that the only "accessible" washroom is in the service car and submits that coach cars that are not used in immediate proximity to a service car will be inaccessible and unusable by persons who use wheelchairs.

CCD adds that, on some consists, the service car is attached to the coach car in a manner that would prevent a person in a wheelchair from accessing the washroom in the "accessible suite". CCD asserts that VIA presents proposed train consists but is unwilling to make definitive statements about their use on the record. CCD further asserts that, in the absence of a commitment on the record with respect to the use of the Renaissance trains, the only reasonable conclusion is that VIA will be prepared to use them in completely inaccessible consists whenever it is convenient for VIA. Finally, CCD asserts that, unlike the Renaissance Cars, individual cars which provide "self-contained accessibility", as contemplated by the Rail Code, assure persons with disabilities that their requirements will not be sacrificed or overlooked as future consists are established.

Mr. Ross submits that in order to access any of the seating or the accessible washroom in the service car, a person with a disability will have to use an on-board wheelchair, which needs to be propelled by an attendant or by VIA staff.

VIA

VIA states that the Renaissance equipment purchased is designed to form a single train consist containing three to eight passenger cars. VIA further states that in each consist there will always be a service car which it describes as having "unique accessibility features", including wide-door access, a large washroom, space for service animals, and sleeping accommodation in a bedroom which is accessible to persons with disabilities.

VIA submits that a person who occupies the wheelchair tie-down in an economy coach car that is not adjacent to a service car will be able to access the "accessible washroom" in the service car by passing through the train and, where necessary, an on-board wheelchair will be available. Finally, VIA states that the inaccessibility of the service car washroom from the VIA-1 cars has necessitated that the single removable seat in the VIA-1 coach cars in the Corridor day train not be sold to passengers who use wheelchairs.

Analysis

Obstacle

As set out in the "Principles of Accessibility" section, the Agency is of the opinion that the principle of independence is fundamental to the concept of accessibility and that persons with disabilities should have the choice to remain in their own wheelchairs whenever possible. The provision of, for example, a wheelchair tie-down in the economy coach cars enables persons with disabilities to make the choice to remain in their own wheelchairs and this is an important accessible feature of the Renaissance Cars. In addition, as previously discussed, while on-board wheelchairs provide an option to those who are able and willing to use them, the Agency is of the opinion that they are not a substitute for a person's own wheelchair given that many persons who use wheelchairs are unable to use or have significant difficulty using on-board wheelchairs.

Furthermore, the Agency is of the opinion that independent and easy access to an "accessible washroom" is fundamental to the accessibility of rail travel by persons with disabilities. Ideally, rail cars should provide self-contained accessibility such that there is easy access from wheelchair-accessible features such as wheelchair tie-downs to wheelchair-accessible washrooms in order that persons can move between the accessible features easily and independently. The Agency is of the opinion that persons who use wheelchair tie-downs should not be required to transfer to an on-board wheelchair in order to access a washroom.

The Agency notes that the principles of independence and self-contained accessibility are reflected in the Rail Code, which sets out that in new cars such as the Renaissance Cars, there should be at least one wheelchair-accessible washroom in a coach car with a wheelchair tie-down and, where applicable, one wheelchair-accessible bedroom, including a wheelchair-accessible washroom, in a sleeper car, in each train consist.

The Renaissance economy coach cars do not provide this level of self-contained accessibility as the "accessible suite" is located in the service car and not in the sleeper car and the coach car containing the wheelchair tie-down does not have a wheelchair accessible washroom; rather, a person occupying the wheelchair tie-down needs to travel to the service car in order to access the "accessible washroom". However, the Agency has determined, as set out in the "Obstacle determinations with the final decision on undueness deferred" section, that, given the design of these cars, it is prepared to accept that the location of the accessible sleeper unit and washroom in the service car may be a reasonable alternative, provided that it meets the principle of easy access by reflecting an appropriate level of accessibility in the route between the wheelchair tie-down and the washroom and in the facilities within the washroom itself. In this regard, and as previously determined, the Agency has found that there are a number of obstacles to the mobility of persons with disabilities present along the route to the "accessible washroom" and within the washroom itself. As a result, the Agency will not make a final determination as to whether the obstacles presented by the location of the "accessible suite"in the service car and the fact that the coach car washrooms are not accessible to persons in Personal Wheelchairs are undue obstacles until the Agency has made its determinations regarding the "accessible suite" and the obstacles along the route between the wheelchair tie-down and the accessible washroom.

The Agency notes CCD's concern that there will be inaccessible coach and sleeper cars because they will not necessarily be part of a consist that has a wheelchair-accessible washroom. However, the Agency is of the opinion that VIA has addressed this concern by confirming that each train consist will always include a service car with an "accessible suite".

Having said this, the Agency recognizes the significance of CCD's related concern that persons using the wheelchair tie-downs in the coach cars that are not marshalled with the wheelchair tie-down immediately adjacent to the "accessible washroom" in the service car will not have access to an accessible washroom given that the majority of wheelchairs will not be able to manoeuvre down the aisles in the coach car.

The Agency has reviewed the Renaissance train consists and notes that all consists have wheelchair tie-downs located in economy coach cars where the wheelchair tie-down is not immediately adjacent to the "accessible washroom" in the service car. The Agency notes that this marshalling may cause access problems for persons who wish to use these wheelchair tie-downs, as they will not have independent access to the "accessible washroom" unless their wheelchairs fit down the aisles in the coach cars and/or the service cars. For persons whose wheelchairs will not fit down these aisles, they will not have access to an "accessible washroom" unless they are able and willing to use an on-board wheelchair.

Based on the foregoing, the Agency finds that the train consists where a person who uses a Personal Wheelchair and who occupies a wheelchair tie-down cannot independently access the "accessible washroom" constitute an obstacle to the mobility of persons who use Personal Wheelchairs.

Undueness

As noted above, given that each Renaissance train consist is comprised of one or more economy coach cars that are not marshalled immediately adjacent to the "accessible washroom" in the service cars, the "accessible washroom" is not independently accessible to some persons using Personal Wheelchairs who occupy a wheelchair tie-down in these cars, while others will be prevented altogether from accessing it. Therefore, in all instances where the service car is not marshalled with the "accessible suite" immediately adjacent to a wheelchair tie-down in the economy coach car, an unsatisfactory level of accessibility is provided to persons with disabilities who choose to occupy that wheelchair tie-down and whose wheelchair does not fit down the necessary aisles.

However, in each of the consists for the Québec-Windsor Corridor day service, the Montréal-Halifax service and the Montréal-Gaspé service, there is one coach car which is marshalled with its wheelchair tie-down immediately adjacent to the "accessible washroom" in the service car and, where overnight services are offered, there is another service car with the "accessible suite" marshalled immediately adjacent to the sleeper car. In this way, and assuming that the route between the wheelchair tie-down and the "accessible washroom" and the facilities within the "accessible washroom" itself provide an appropriate level of accessibility, one fully accessible sleeper unit and one wheelchair tie-down with access to an accessible washroom will be provided in each consist. The Agency is of the opinion that CCD has not demonstrated that this is not sufficient to meet the needs of persons who use wheelchairs. As such, and at this time, the Agency does not find that this constitutes an undue obstacle; however, in view of the fact that this finding is dependent on the level of accessibility provided by the "accessible suite" and the route between the suite and the wheelchair tie-down, the Agency may revisit this finding if it finds that these alternative accommodations do not provide an appropriate level of accessibility.

This is not the case, though, with the marshalling of the cars in the Montréal-Toronto overnight train consist. The Agency notes that this consist contains only one service car and that the "accessible suite" in that service car is marshalled next to a sleeper car. VIA has indicated that the "accessible suite" will always be the first space to be assigned to a person who wants to remain in their wheelchair on this route, whether the request is for an accessible bedroom or a wheelchair tie-down, in which case there will be an automatic upgrade to the "accessible suite". All subsequent requests for travel by persons who want to remain in their wheelchairs will be accommodated in one of the wheelchair tie-downs in each of the two economy coach cars; however, these individuals will not have access to the "accessible washroom". Furthermore, it appears, from the evidence on file, that the washrooms in the coach cars are not accessible to a person using an on-board wheelchair and, thus, it seems that persons occupying these wheelchair tie-downs will not have access to a washroom. The Agency is of the opinion that, under these circumstances, the wheelchair tie-downs will not provide an appropriate level of accessibility.

With respect to potential solutions for the problem posed by the Montréal-Toronto overnight train consist, it is apparent that the lack of a wheelchair-accessible washroom for a person occupying a wheelchair tie-down located in one of the economy coach cars could be addressed by the addition of a second service car which has the "accessible suite" marshalled immediately adjacent to the wheelchair tie-down in the economy coach cars. In this way, like the Ocean train consist and the Gaspé train consist, the Montréal-Toronto overnight train consist would have more than one service car. The Agency notes that, as part of VIA's purchase of the Renaissance trains, there were twenty service cars. The Agency further notes that 19 of these service cars will be deployed and one will be built for growth, peak demand periods and damage replacement such that no additional service car is available to add to the Montréal-Toronto overnight train consist. However, the Agency notes that it has no compelling evidence before it as to why VIA could not add this last service car to one of these consists. In this regard, the Agency notes that the allocation of cars to be built for growth, peak demand periods and damage replacement has not been finalized and thus the Agency is of the opinion that there may be other service cars available.

Alternatively, this highlights the reason why self-contained passenger rail car accessibility is preferable to accessibility on a train consist basis since the level of accessibility provided by the latter will be dependent on the appropriate marshalling of rail cars, both as to type and location. In this regard, the Agency notes CCD's submissions regarding the reconfiguration of the coach cars to remove one of the two washrooms at the wheelchair tie-down end of the car and reconfigure the remaining washroom to be wheelchair-accessible. The Agency notes that, in addition to addressing the problem with the Montréal-Toronto overnight consist, this may enable VIA to address three other obstacles with one modification: the space in the wheelchair tie-down area, the width of the bulkhead door opening, and the width of the aisle between the two washrooms.

While VIA has provided general structural and economic arguments that may be relevant to the two possible solutions set out above, the Agency has already considered these arguments in the "Determination of the undueness of obstacles" section. Based on the foregoing and in the absence of specific evidence as to why either of these solutions is not feasible or practicable, the Agency's preliminary finding is that the Montréal-Toronto overnight train consist constitutes an undue obstacle to the mobility of persons who use wheelchairs.

Top of Page

V - OBSTACLE DETERMINATIONS WITH THE FINAL DECISION ON UNDUENESS DEFERRED

1. Coach car washrooms and location of the "accessible washroom"

Facts

In the economy coach car which is adjacent to a service car, there are two washrooms located between the bulkhead wall behind the wheelchair tie-down and the gangway leading to the service car. Each washroom is 130 cm long by 83 cm wide (51.18" X 32.68") at the end closest to the bulkhead and 53 cm (20.87") wide at the end closest to the gangway. The doorways to the washrooms are 44 cm (17.32") wide.

The washroom in the "accessible suite" is located a distance of approximately seven metres (22.96') from the wheelchair tie-down in the coach car when the coach car is marshalled immediately adjacent to the "accessible suite" in the service car. In order for a person to access the "accessible washroom" from this wheelchair tie-down, they must travel through: a 74-centimetre (29.13") wide bulkhead door in the coach car; an aisle between two washrooms, which widens from 74 cm (29.13") at the end which is closest to the bulkhead to 98 cm (38.58") at the end which is closest to the opening to the gangway; a 98 centimetre-wide (38.58") opening to the gangway; the gangway, which measures 82 cm (32.28") wide at floor level; an opening between the gangway and a vestibule that is 98 cm (38.58") wide; a vestibule that is 132 cm (51.97") wide by 247 cm (97.24") long; a 75 centimetre-wide (29.53") doorway to the "accessible suite"; the sleeper unit of the "accessible suite", which measures 120 cm (47.24") wide by 136 cm (53.54") long; and a 75 centimetre-wide (29.53") doorway to the "accessible washroom".

Positions of parties

CCD

CCD notes that the Rail Code requires that there be at least one wheelchair-accessible washroom in each accessible coach car and it states that there is no accessible washroom in the coach car containing the wheelchair tie-down. CCD comments that the only washroom which is "even marginally wheelchair-accessible" is the one in the "accessible suite" located in the service car. CCD submits that at least one of the washrooms in the coach car should provide wheelchair access "...not unlike accessible washrooms in existing VIA equipment."

CCD further notes that the Rail Code requires that the location of the wheelchair tie-down permit easy access to a wheelchair-accessible washroom and to wheelchair-accessible doorways. In this respect, CCD notes that a person who uses a wheelchair must travel seven metres, through diaphragms over interconnecting couplers between cars in order to access the "accessible washroom".

Mr. Woollam asserts that the trip to the washroom requires passage through what can be considered a long, narrow passageway that does not meet general dimensional guidelines and that has moving diaphragms and raised foot plates when the train is in motion. Finally, CCD submits that accessing the washroom from the wheelchair tie-down in the adjoining car requires a series of difficult turning and alignment manoeuvres.

CCD comments that persons who do not have disabilities are not expected to travel to another rail car to access a washroom and expresses the view that, in order to limit the need for persons who use wheelchairs to travel between cars that are in motion, the "accessible washroom" should be located in the coach car where the permanent wheelchair tie-down is located.

In his report following the Agency's second inspection of the Renaissance Cars, Mr. Woollam states that discussions with a VIA representative during the inspection lead him to believe that the washroom facilities and interior finish in the washroom located in the coach car vestibule are still in place and that the area is simply closed off with the space unused. Mr. Woollam indicates that VIA had originally stated that this space would be used for an oversized luggage locker or perhaps a vending machine. Mr. Woollam expresses the view that neither of these uses appears to be a priority as they have not been implemented. Mr. Woollam submits that if two washrooms are deemed necessary for the coach car, it seems logical that the vestibule washroom be recommissioned and the washroom immediately behind the wheelchair tie-down position be removed to provide better wheelchair access, which would result in one washroom at each end of the coach. Mr. Woollam adds that not all of the space now occupied by the washroom behind the wheelchair tie-down would be required, and as such, any remaining space could be used for a luggage locker.

CCD believes that the washroom located in the vestibule is highly relevant to the Agency's examination of the accessibility of the coach car. CCD further requests that the Agency direct VIA to provide an accessible washroom in all coach cars with a wheelchair tie-down, as required under the Rail Code.

VIA

VIA submits that the "accessible washroom" is within close proximity to the wheelchair tie-down in the adjoining coach car, thereby permitting easy access. VIA advises that the requirements of the Rail Code pertaining to the provision of at least one wheelchair-accessible washroom "will be accommodated" in the service car. VIA further submits that it is "a reasonable and appropriate adjustment" to have located the "accessible washroom" in a car separate from that containing the wheelchair tie-down.

VIA asserts that the toilets, the accessories, and the coat hooks in the washrooms in the coach car comply with the Rail Code. VIA notes that all recessed washroom door handles will be replaced by compliant hardware. VIA further notes that the grab bars will be made slip-resistant by the addition of slip-resistant tape and that all washroom faucets and other controls that cannot be operable with a closed fist and minimal force will be replaced with compliant hardware. Finally, VIA notes that a call system will be installed in the coach car washrooms.

Transport 2000 Canada Inc.

Transport 2000, an intervener, expresses the view that, if a washroom can be made wheelchair-accessible in the coach car without major disruption or major economic penalty, such as the loss of four seats, it is desirable to do so.

Analysis

Obstacle

As set out in the "Principles of Accessibility" section, the Agency is of the opinion that the principle of independence is fundamental to the concept of accessibility and it is for this reason that the Agency considers that persons with disabilities should have the choice to remain in their wheelchair as much as possible. Ideally, cars should provide self-contained accessibility such that wheelchair-accessible features such as wheelchair tie-downs should be located close to wheelchair-accessible washrooms so that persons can move between the accessible features easily and independently.

The Agency notes that these principles are reflected in the Rail Code in that it provides that there be at least one wheelchair-accessible washroom in each coach car that has a wheelchair tie-down.

The Agency accepts CCD's submission that the washrooms in the coach cars containing wheelchair tie-downs are not accessible to persons using their own wheelchairs, as, based on the evidence on file, VIA advised that the requirements of the Rail Code pertaining to the provision of at least one wheelchair-accessible washroom "will be accommodated" in the service car.

Based on the foregoing, the Agency finds that, as the washroom in the coach car containing the wheelchair tie-down is not accessible to persons who use Personal Wheelchairs, this constitutes an obstacle to their mobility.

However, the Agency notes that it is VIA's intention that the needs of persons who use wheelchairs be accommodated through the marshalling of the coach car with the wheelchair tie-down immediately adjacent to the "accessible suite" in the service car. In its consideration of the level of accessibility provided by this accommodation, the Agency recognizes that persons with disabilities travelling by rail should have easy access to those services and features which are required to meet their needs. This principle is reflected in section 1.3.4. of the Rail Code, which provides that there should be easy access between a wheelchair tie-down and a wheelchair-accessible washroom.

In determining whether a person who uses his/her own wheelchair has easy access to the "accessible washroom", the Agency is of the opinion that the route which such a person travels in order to access the washroom needs to be considered. More specifically, the Agency is of the opinion that the distance between the wheelchair tie-down in the economy coach car next to the service car and the "accessible washroom", in conjunction with the areas through which a person who uses his/her own wheelchair must travel and any obstructions which may exist along the route, must be considered in order to determine whether there is easy access to the "accessible washroom" for persons using their own wheelchairs.

In this case, the route between the wheelchair tie-down in the economy coach car next to the service car and the "accessible washroom" is approximately seven metres through a door in the coach car bulkhead; an aisle between the two washrooms in the coach car; doors at both ends of the gangway and the gangway, itself; a vestibule; the sleeper unit of the "accessible suite"; and doorways into the sleeper unit and washroom in the "accessible suite".

As previously determined, the Agency is of the opinion that the doorways into the sleeper unit and the washroom in the "accessible suite" constitute obstacles to the mobility of persons who use Personal Wheelchairs. Additionally, the Agency finds that the door in the economy coach car bulkhead as well as the aisle that is between the two washrooms in the economy coach car constitute obstacles to the mobility of persons who use Personal Wheelchairs. As a result of these obstacles along the route, the Agency is of the opinion that a person who uses a Personal Wheelchair does not have easy access to the "accessible washroom" from the wheelchair tie-down in the economy coach car that is marshalled adjacent to the service car and vice-versa. Therefore, the Agency finds that the location of the "accessible washroom" constitutes an obstacle to the mobility of persons who use Personal Wheelchairs.

Undueness

The Rail Code provides that a coach car that has a wheelchair tie-down should have at least one washroom that is wheelchair-accessible. It should be noted that at the time that the Code was developed, it was anticipated that all wheelchair-accessible washrooms would be located in the coach cars containing wheelchair tie-downs.

The Agency is of the opinion that the ultimate aim of the Rail Code with respect to the location of a wheelchair-accessible washroom is that it provide easy access from the wheelchair tie-down. The Agency recognizes that ideally the "accessible washroom" should be in the coach car. However, given the design of these cars, the Agency is prepared to accept that its location in the service car may be a reasonable alternative, provided that it meets the principle of easy access by reflecting an appropriate level of accessibility in the route between the wheelchair tie-down and the washroom, and in the facilities within the washroom itself.

In this regard, as previously determined, the Agency has found that there are a number of obstacles to the mobility of persons with disabilities present along the route to the "accessible washroom" and within the washroom itself. As a result, the Agency will not make a final determination as to whether the obstacles presented by the fact that the "accessible washroom" is not located in the economy coach car next to the service car and the fact that the economy coach car washrooms are not accessible to persons in Personal Wheelchairs are undue obstacles until the Agency has made its determinations regarding the "accessible suite" and the obstacles along the route between the wheelchair tie-down in the economy coach car and the "accessible washroom".

Top of Page

2. Sleeper cars

Facts

The sleeper car consists of ten sleeper units located along a corridor which measures 52 cm (20.47") wide at floor level and 50 cm (19.69") wide at a point where a door was previously located. Each sleeper unit accommodates two adults and is equipped with a washroom. The door to each unit is 53 cm (20.87") wide and the clear floor area measures 72 cm wide by 191 cm long (28.35" x 75.20").

Six of the washrooms have a shower. The dimensions of the washrooms in these "deluxe" sleeper units are 78 cm wide by 102 cm long (30.71" x 40.16").

Positions of parties

CCD

i) Sleeper units

CCD submits that there is no wheelchair-accessible sleeping compartment in the sleeper car and that the entire car is inaccessible to persons who use wheelchairs. CCD notes that the Rail Code requires at least one wheelchair-accessible sleeping car per train. CCD also notes that the Code provides that all new sleeper cars be accessible and submits that this provision applies to VIA until the requirement of the Code is achieved across VIA's fleet. CCD further submits that none of the seventy new sleeper cars in the Renaissance fleet will have a wheelchair-accessible room with the result that the Agency's expressed goal of ensuring that all sleeper cars that are newly manufactured or that are undergoing a major refurbishment meet "Agency accessibility guidelines" until all trains have one sleeping car that meets the requirements of the Code, is not being met. CCD comments that the existing inaccessible sleeping cars are not being withdrawn from operation.

ii) Washrooms

CCD submits that the sleeper car does not have accessible washrooms for persons with mobility limitations.

iii) Location of the sleeper units and washrooms

CCD submits that the goal underlying the Rail Code is to have a fully accessible coach car and, where applicable, a fully accessible sleeper car on every train. CCD states that the Renaissance Cars will not contribute to achieving this goal for trains composed of the existing rolling stock, which VIA intends to maintain in service. CCD explains that locating the "accessible suite" in the service car frustrates the Agency's strategy for eliminating barriers that exist within the coach and sleeper cars of VIA's existing fleet, that is all cars to be accessible until the goal is achieved.

CCD submits that being confined and segregated in one restricted compartment is isolating and incompatible with the integrative goals underlying subsection 15(1) of the Charter and section 5 of the CTA. CCD further submits that the location of the "accessible suite" will pose hardships for groups, such as teams of wheelchair athletes. CCD comments that one other person could accompany a person with a disability who is travelling in the "accessible suite" but that person could not be a person who uses a wheelchair and would need to be capable of using an upper berth.

With respect to uncompleted equipment, Mr. Boyd, in a letter dated November 25, 2000 to VIA, expresses the view that the wheelchair-accessible sleeper unit and washroom should be integrated into the sleeper car thereby allowing children of a family with one disabled parent to be accommodated adjacent to their parents. Mr. Boyd comments that such an arrangement would provide an "inclusive" solution and would not discriminate between "classes of people", which could be viewed as a violation of section 15 of the Charter.

VIA

i) Sleeper units

VIA noted early in the pleadings that it was making modifications to the sleeper cars, including modifications to improve signs by applying braille and raised lettering, where necessary; installing fire/smoke indicators in bedrooms; and installing visual displays in all cars. VIA demonstrated during the Agency's inspection on September 16, 2002, that the sleeper car was modified by adding braille and raised-lettering signage in the hallway to identify room numbers, as well as electronic information displays in bedrooms. A visual alarm was also installed on the ceiling of each bedroom.

ii) Washroom

VIA states that the requirements in the Rail Code pertaining to the provision of a wheelchair-accessible washroom will be accommodated by the "accessible suite" in the service car.

VIA notes that it is making modifications to the washrooms in the sleeper cars, including improvements to the faucets in some washrooms and the installation of emergency call features in other washrooms.

iii) Location of sleeper units and washrooms

VIA submits that the Renaissance Cars provide sleeping space for persons with disabilities and that this is an important addition to service standards. VIA asserts that it is compliant with section 1.4 of the Rail Code, "Wheelchair Accessible Sleeping Car", and states that the requirements in the Code pertaining to the provision of at least one wheelchair-accessible bedroom will be accommodated by the "accessible suite" in the service car. VIA states that the service car provides dedicated accommodations for passengers with disabilities.

VIA further submits that "the focus on the accommodation in the service car part of the trains is justified by the usage figures. In 2000, VIA carried 3.95 million passengers and, of those, less than .1% were persons with disabilities. Service car accommodation for persons with disabilities will, therefore, be sufficient to satisfy most needs."

Transport 2000 Canada Inc.

Transport 2000 identifies possibilities for improving certain aspects of the Renaissance Cars, including the possibility of providing a sleeping compartment for a passenger with a disability in the sleeper cars. Transport 2000 expresses the view that this could be an option, provided that the berth is located adjacent to the "accessible suite" of the service car. Transport 2000 comments that both cars would share the vestibule of the service car and that the corridor between the cars would allow "easy passage for a passenger in a wheelchair to the second compartment." Finally, Transport 2000 expresses the view that, because of the extra space available, two accessible spaces in one compartment may be created but comments that this exceeds "the criterion" and cost would no doubt be a factor.

Analysis

Obstacle

As set out in the "Principles of Accessibility" section, the Agency recognizes that persons with disabilities should 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 is critical to the ability of persons with disabilities to exercise that right. Furthermore, the principle of the right to equal access to transportation implies a recognition that persons with disabilities have the same needs to travel as others - for business, for pleasure, for medical reasons, and the like - and want to have the same travel options that are provided to others, such as mode of transportation, departure times, cost, and the ability to travel with friends, family or colleagues.

Another important principle relates to the full integration of persons with disabilities, where possible, and essential to this principle is the goal of providing persons with disabilities with as many options and choices as possible.

The Agency notes that these principles are reflected in the Rail Code which provides that with respect to new equipment, every passenger train that provides sleeping car facilities should have at least one sleeping car that has at least one wheelchair-accessible bedroom and washroom. However, the Agency notes that there is no wheelchair-accessible sleeping compartment, including an accessible washroom for persons who have mobility limitations in the sleeper cars on the Renaissance trains.

In this regard, the Agency notes that it is VIA's intention to accommodate the needs of persons who use wheelchairs in the "accessible suite" in the service car. As such, the sleeping facilities that are specifically designed for persons who use wheelchairs are located in the service car, with the result that persons using their own wheelchairs who require sleeping accommodations must stay in the service car and not in the sleeper car.

The inability of persons who use wheelchairs to access and use the sleeping accommodations in the sleeper cars on the Renaissance trains obviously results in the removal of choice to persons who use wheelchairs and who need to or wish to remain in their own wheelchairs while using sleeping accommodations. The only option available to them is to use the "accessible suite" located in the service car. This means that these persons cannot be situated in close proximity to family, friends, and colleagues who have sleeping accommodations in the sleeper car.

Based on the foregoing, the Agency finds that the fact that the sleeper car does not provide a wheelchair-accessible bedroom and washroom constitutes an obstacle to the mobility of persons who use Personal Wheelchairs.

Undueness

The Agency is of the opinion that a person using a wheelchair should be able to purchase sleeping accommodations where such are otherwise available in a train consist. In this respect, the Agency is of the opinion that the Renaissance Cars, being new cars, should provide a sleeper unit accessible to a person using a Personal Wheelchair.

The Rail Code provides that eventually, every passenger train that provides sleeping car facilities should have at least one sleeping car that has at least one wheelchair-accessible bedroom and washroom and that, until such time as this goal is reached, any newly manufactured sleeping car to be used on or after April 1, 2001, or any existing sleeping car undergoing a major refurbishment to be used on or after that same date, should provide such accommodations to persons who use Personal Wheelchairs.

At the time that the Rail Code was developed, it was anticipated that all sleeper units, including the wheelchair-accessible sleeper unit, would be located in sleeper cars and while the Agency recognizes the importance of the goal of integration of persons with disabilities, the Agency also recognizes that, practically speaking, full integration is not always possible due to such factors as economic constraints and structural limitations which impact on the ability to provide for full integration of persons with disabilities.

The Agency is of the opinion that the ultimate aim of the Rail Code with respect to sleeper cars is that in a train consist there would always be a sleeper unit that is accessible to persons who use Personal Wheelchairs. In the case of the Renaissance trains, the "accessible suite" is located in the service car and not in the sleeper car. The Agency recognizes that ideally the "accessible suite" should be located in the sleeper car, however given the design of these cars, the Agency accepts that its location in the service car may be a reasonable alternative, provided that it reflects an appropriate level of accessibility. In this regard, and as previously determined, the Agency has found that there are a number of obstacles to the mobility of persons with disabilities in the "accessible suite". As a result, the Agency will not make a final determination as to whether the obstacle presented by the fact that the sleeper car does not provide a wheelchair-accessible bedroom and washroom is an undue obstacle until the Agency has made its determinations regarding the "accessible suite".

Top of Page

VI - DIRECTION TO SHOW CAUSE

The Agency has made preliminary findings that the following features in the Renaissance Cars constitute undue obstacles to the mobility of persons with disabilities, including, and in particular, persons who use wheelchairs:

Coach car
1. the lack of movable aisle armrests on the double seat side of the coach cars
Economy coach car
1. the width of the aisle between the two washrooms
2. the inadequate clear floor space of the wheelchair tie-down to accommodate a Personal Wheelchair and a service animal
3. the amount of manoeuvring space, including the lack of a 150 cm (59.06") turning diameter in the wheelchair tie-down area
4. the width of the bulkhead door
5. the lack of seating either beside or facing the wheelchair tie-down for an attendant
6. the insufficient space that will accommodate persons travelling with service animals
Consists
1. the Montréal-Toronto overnight train consist and the fact that there is no accessible washroom for persons using the wheelchair tie-down in the economy coach cars
Stairs
1. the riser heights and stair depths
2. the lack of closed stair risers
"Accessible suite"
1. the width of the doors in the "accessible suite"
2. the fact that a person with a disability will not be able to retain a Personal Wheelchair in the "accessible suite"
3. the insufficient space beside the toilet in the "accessible suite" to allow a person using a Personal Wheelchair to effect a side transfer to the toilet
4. the lack of a 150 cm (59.06") turning diameter in the "accessible suite"

It is important to note that the majority of the obstacles identified above relate to those areas of the Renaissance trains that have been specifically designed to meet the needs of persons with disabilities; that being the accessible suite and the wheelchair tie-down, while the aisle between the washrooms in the coach car is the route linking these two main accessible areas. Considering the importance of these areas to persons with disabilities, it is clear that the foregoing obstacles have a significant impact on the mobility of persons with disabilities. In particular, they detract from the independence and from the sense of safety and security for some persons who use wheelchairs who will be required to use onboard wheelchairs because areas that are fundamental to accessible travel on the Renaissance trains do not accommodate a Personal Wheelchair. Furthermore, ease of access is compromised because some persons who use wheelchairs will be forced to exit these fundamental areas while travelling in reverse or to perform repeated and difficult manoeuvres because doorways, aisles and other areas do not accommodate a Personal Wheelchair. Additionally, in some cases, the obstacles may prevent some persons with disabilities from travelling on the Renaissance trains.

In recognition of both the fact that this application is unique in nature in that it involves the consideration of the design of rail cars and the volume of submissions filed relating to the forty-six concerns raised by CCD, the Agency is providing VIA with the opportunity, by way of a direction to show cause, to specifically address the preliminary undue obstacles that have been determined by the Agency to exist in the Renaissance Cars.

VIA made general operational, economic and structural arguments that the Agency considered as being insufficient, in and of themselves, to justify the existence of obstacles in the Renaissance Cars; however, the Agency recognizes that there may be specific arguments that VIA may wish to bring forward in view of the Agency's preliminary findings of undue obstacles. In this regard, the Agency directs VIA to file answers to the following questions:

VIA is required to identify the various methods of remedying each of the above listed obstacles in the Renaissance Cars. If VIA is of the opinion that it is not possible, because of structural reasons, to remedy an obstacle, VIA is required to clearly explain the reasons why it is of such an opinion and to provide supporting evidence from a Professional Engineer who has expertise in the design and manufacture of rail cars.
Where CCD has specifically identified a method(s) of remedying an obstacle, such as is the case for the wheelchair tie-down, VIA is required to give consideration to such method(s) and to indicate, in its response, whether it is of the opinion that such method(s) is structurally possible. If VIA is of the opinion that, because of structural reasons, such method(s) of remedying an obstacle is not possible, VIA is required to clearly explain the reasons why it is of such an opinion and to provide supporting evidence from a Professional Engineer who has expertise in the design and manufacture of rail cars.
VIA is further required to describe, in detail, in respect of each of the methods of remedying an obstacle that it identifies as being structurally possible (including those suggested by CCD), the various structural modifications that would be required, according to the stage of completion of the Renaissance Cars (i.e., shells, partially completed cars, and completed cars). VIA is required to provide a level of detail commensurate with what would be required in order to enable a Professional Engineer with expertise in the design and manufacture of rail cars to fully understand the various structural modifications and any other structural implications entailed in respect of the particular method of remedying the obstacle.
VIA is required to obtain from a third party an estimate of the cost of the various structural modifications that would be required in respect of each of the methods of remedying an obstacle identified by VIA as being possible, on a per car basis. The cost estimate must give consideration to the cost in respect of the cars that are completed, partially completed and uncompleted and must provide a level of detail sufficient to permit a full understanding of the cost estimate.
In the event that any of the methods of remedying an obstacle, which VIA has identified as being possible, would have structural implications for other areas in the Renaissance Cars, VIA is required to specify what these are in a level of detail commensurate with what would be required in order to enable a Professional Engineer with expertise in the design and manufacture of rail cars to fully understand the associated structural implications resulting from the method of remedying the obstacle.
In the event that any of the methods of remedying an obstacle, which VIA has identified as being possible, would have operational implications, VIA is required to specify in detail what these are so as to permit a full understanding of the operational implications resulting from the method of remedying the obstacle.
VIA is required, in respect of items (iv) and (vi) above, to clearly identify and quantify any one-time costs and ongoing operating expenses that VIA would incur as a result of making the modifications to remedy an obstacle.
If VIA is of the opinion that it cannot, from a financial perspective, afford the costs associated with remedying an obstacle, VIA is required to provide verifiable evidence to support its views. In this context, the Agency considers verifiable evidence to include financial information that is supported by VIA's financial records. The Agency is of the opinion that, of particular relevance are VIA's current audited and interim financial statements, its current cash flow projections and the underlying assumptions, and VIA's detailed business plan.
VIA is required, as part of its response to the Agency's direction to show cause, to submit a plan for the Agency's consideration that sets out how VIA can address the obstacles that exist in the Renaissance Cars over a reasonable period of time. While the Agency recognizes that there may be significant operational and economic implications resulting from the requirement for VIA to undertake modifications to the Renaissance Cars in order to remedy the obstacles, the Agency is of the opinion that such implications may be mitigated by planning the modifications to occur over time so as to minimize the impact on the operation of VIA's passenger rail network. For example, VIA could start addressing the obstacles by focussing on those Renaissance Cars which are shells and those which are partially completed. In this way, existing Renaissance Cars which contain the obstacles can be taken out of service over time and be replaced with new cars as they are fitted up or modified to address the obstacles.

VIA has sixty (60) days from the date of this Decision to file its answer to these questions, along with a copy to CCD, who will have thirty (30) days to file its reply, with a copy of VIA. Should VIA wish to respond at that point, it will have then fifteen (15) days to do so. In the absence of any or all of the above required information, the Agency will finalize its findings and determination based on the evidence on file.

Upon receipt of the information required to be filed with respect to the above-noted questions, the Agency will assess the information and finalize its findings. However, before doing so, the Agency may require more information from the parties. In addition to the information to be filed with the Agency, as set out above, VIA may file any further information with the Agency that it considers relevant.

It should be noted that the Agency, in considering the obstacles presented in the wheelchair tie-down and the aisle between the two washrooms in the economy coach cars, did not limit its analysis to those economy coach cars marshalled with the tie-down immediately adjacent to the accessible washroom in the service cars. Although the Agency did accept the notion that there would only be one fully accessible seating area per train (wheelchair tie-down with full access to an accessible washroom) in the "Train consists" section, the Agency has been unable to determine that there is a specific group of economy coach cars that are intended to always be marshalled this way. However, if VIA does operationally separate the economy coach cars into definitive groups such that there is a subset of economy coach cars that will always be marshalled in every consist with the tie-down immediately adjacent to the accessible washroom in the service car, VIA may submit details regarding this and the Agency will consider this in its finalization of its decision.

It should also be noted that the Agency has found the inaccessibility of the bedrooms in the sleeper car and the washrooms in the economy coach car, in addition to the location of the "accessible washroom", to be obstacles to the mobility of persons who use wheelchairs. The Agency has also made preliminary findings that there are a number of undue obstacles both within the "accessible suite" and along the route between the "accessible suite" and the wheelchair tie-down, which are a part of the Agency's direction to show cause. However, in view of the Agency's intention to consider the level of accessibility that can be provided in VIA's proposed alternative accommodation, being the "accessible suite", the Agency will defer its consideration of the undueness of the obstacles in the sleeper car, the washrooms in the coach cars and the location of the "accessible washroom" pending receipt and review of any further information filed by VIA as a result of this show cause regarding the preliminary undue obstacle determinations.

Top of Page

VII - COSTS

CCD has made numerous requests in the course of these proceedings that the Agency order VIA to pay CCD's costs, or part thereof, in this matter. By Decision No. LET-AT-R-250-2002 dated August 29, 2002, the Agency determined that it would entertain submissions as to costs, if deemed appropriate, once a final decision on CCD's application is issued. While this Decision contains some determinations which could be considered to be final, the Agency is of the opinion that the nature of this Decision is interlocutory and, as such, the Agency is not prepared to consider CCD's application for costs at this time.

Top of Page

VIII - PRELIMINARY DISSENTING OPINION OF MEMBER RICHARD CASHIN

I have read the reasons of the majority and although I agree with respect to most of its findings of obstacles I respectfully must disagree, for the reasons that I have set out below, with its preliminary undue obstacle findings.

Analysis and decision

In the case before the Agency, the analysis pursuant to subsection 172(1) of the CTA requires at the outset a consideration as to whether the obstacles alleged by CCD, in respect of the Renaissance cars, constitute obstacles to the mobility of persons with disabilities. In this regard, I am in agreement with the majority in most cases where it finds that certain features of the Renaissance cars constitute obstacles to the mobility of persons with disabilities.

Upon making a finding that there are obstacles, it is then necessary again, pursuant to subsection 172(1) of the CTA, to consider whether those obstacles are undue. This analysis involves a balancing of the undueness factors set out by the parties. As set out by the Federal Court of Appeal in the Lemonde Decision, the Agency must take into account the context in which an allegation that an obstacle is undue is made. In this regard, I agree with VIA's argument that its network is the proper context for the Agency's undueness analysis. My assessment of the evidence and argument presented by the parties leads me to the preliminary conclusion that the obstacles found in respect of the Renaissance cars do not constitute undue obstacles to the mobility of persons with disabilities.

I will not repeat CCD's and VIA's arguments with respect to VIA's network which have been set out by the majority.

Although VIA raised a number of factors relating to undueness which are set out in the majority decision, VIA's network argument, in my view, is the key undueness factor and the overriding context in which to undertake the balancing of interests between parties that is required when considering the issue of undueness from VIA's perspective. As such, in considering the issue of undueness, I have taken into account and have accepted VIA's network arguments. In contrast, in agreeing with the majority on most of its obstacles findings, I have essentially considered the issue of obstacle in the context of the Renaissance cars only, as in my view that is the proper context to identify whether there are features of the cars which constitute obstacles.

In its submissions regarding its rail network, VIA maintained that it has a good service record in that it runs a "train system virtually without incident for Canadians with disabilities". VIA submitted that there were 5,383 wheelchair requests in 2001 and that there was "not a single complaint or incident that they couldn't be accommodated". In addition, according to VIA, the existing cars, in conjunction with the Renaissance cars, will provide persons with disabilities with more options and hence an enhanced service. VIA assured the Agency that the existing system will remain after the introduction of the Renaissance cars as nothing is being removed from the present system.

In particular, in final written and oral argument, VIA made some very clear and direct submissions as to its commitment to persons with disabilities and the continuation of the existing network, with the entry into service of the Renaissance cars:

We will meet the needs of Canadians with disabilities and we have, there is no problem.

...the Renaissance trains are running together with the existing fleet and will continue to run together with new trains that will be built hopefully as the moneys become available

...

the VIA Rail network meets the needs of passengers with disabilities presently. The Renaissance trains with different characteristics add to that network capacity and give choice.

After reviewing VIA's submissions regarding its network, I can only conclude that there is no evidence that VIA's existing network, with the addition of the Renaissance cars, will not continue to provide appropriate services to persons with disabilities. In fact, VIA submitted that its current policies and practices that assist persons with disabilities will continue to apply, with the introduction of the new cars. VIA also indicated that the current fleet of VIA trains with existing cars will remain in service as they are required to maintain service standards and levels:

Fleet deployment is a significant issue because the old fleet isn't going out of service, this is needed to maintain any service standards and levels, and this is not going to be the fleet of the future; it is a part of the fleet of the future but only a part as is the existing and as will be newly designed cars when moneys become available.

VIA advised that the Renaissance trains are a "special one-time purchase" and are not the trains of the future. VIA acknowledges that the Renaissance cars will not "meet all of the needs of those with disabilities" and that any obstacles alleged by CCD concerning the Renaissance trains are overcome by the "adequate provision of other transportation services provided on VIA Rail's network". In my view, this implies that VIA will address any obstacles related to the Renaissance cars by taking the appropriate measures to ensure that VIA's network continues to address the needs of persons with disabilities. For example, the Agency has determined that the Renaissance cars' wheelchair tie-down constitutes an obstacle to persons with disabilities. Thus, if the Renaissance cars are the only cars on a particular route then, by implication, based on VIA's submissions, I expect that VIA will take appropriate measures to ensure continued service for persons with disabilities by ensuring that there is a personal wheelchair accessible tie-down on that route. For a particular route, such measures might include having both the existing and Renaissance cars operating together or the retrofit of certain of the Renaissance cars to ensure an accessible tie-down. In my view, this would ensure that VIA has a nationwide system that accommodates persons with disabilities. To do otherwise would result in a different level of service or the provision of an inconsistent service to persons with disabilities depending on the geographical location. In my view, VIA cannot argue that the network works for one route and not another as this would result in an inconsistency in the network system.

Although I recognize CCD's arguments concerning the impact of the obstacles identified by the Agency on persons with disabilities, I am of the view that there is no evidence that these obstacles will not be accommodated by VIA's network. The rights of persons with disabilities to have equivalent access to the federal transportation network does not mean identical access or the provision of the identical services that are available to other passengers but rather it implies the notion of accommodation and VIA, in my view, has demonstrated that even with the addition of the Renaissance cars, the interests of persons with disabilities will continue to be accommodated by VIA's network.

Further, should VIA's network fail to meet the needs of persons with disabilities, subsection 172(1) allows these persons to file an application with the Agency to deal with this.

My views expressed in this dissent are based on my acceptance, at this time, of VIA's evidence that the carrier can and will accommodate the needs of persons with disabilities within its network. It should therefore be evident that, if the evidence submitted in a future application reveals that VIA's network is, in fact, not accommodating the needs of persons with disabilities, I would have no hesitation in making an undue obstacle finding where the evidence supports such a finding.

Conclusion

While the majority has determined it appropriate to issue a show cause as a result of making preliminary undue obstacle findings, in light of my acceptance of VIA's network argument, as set out above, I am not in agreement with the issuance of a show cause and I therefore dissent.

With respect to the majority's preliminary undue obstacle findings, although I accept that certain features of the Renaissance cars, as identified above in the majority's decision, constitute obstacles to the mobility of persons with disabilities, I am of the preliminary opinion, for the reasons set out above, that these obstacles do not constitute undue obstacles to the mobility of persons with disabilities. In view of the process undertaken by the majority, I will defer the finalization of my findings pending the receipt and review of the evidence to be filed in response to the show cause proceeding.

Top of Page

Appendix A

FINAL REPORT

(Edited and modified for the purposes of Decision No. 175-AT-R-2003 dated March 27, 2003)

CANADIAN TRANSPORTATION AGENCY
INSPECTION REPORT
VIA RAIL CANADA INC.'S RENAISSANCE CARS

REPORT DATE: December 10, 2002

PREPARED BY:
ANDRÉ PAQUETTE, P. ENG.
SENIOR INFRASTRUCTURE ENGINEER
RAIL INFRASTRUCTURE DIRECTORATE
CANADIAN TRANSPORTATION AGENCY

INTRODUCTION

Inspections of the Renaissance Cars were conducted by Canadian Transportation Agency's experts, in the presence of both VIA Rail Canada Inc. and the Council of Canadians with Disabilities' experts. The Agency carried out a final viewing of the Cars in the presence of VIA's expert to address variations in measurements noted by the parties.

Attached is a diagram depicting the measurements of areas in the economy coach car, including the wheelchair tie-down; in the service car, including the vestibule and the "accessible suite"; and the connecting gangway.

ECONOMY COACH CAR

A - Inspection

At the front end of the car, there is a vestibule and two exterior doors, one on each side of the car. The door opening is 1.07 m wide but the useable width is 86 cm due to the doors not opening fully.

There is a sliding glass door between the vestibule and the seating area. The door opening is 74 cm wide.

The economy coach car contains a total of 50 seats in a 2-1 configuration: two seats on one side of the aisle and one seat on the other side of the aisle. There are 16 rows of this 2-1 seating configuration. Between the 4th and the 5th row, there is a small luggage compartment. The last row at the end of the car has one seat on each side of the aisle.

Except for a modified single seat on the double-seat side in the last row of the car (see below for details), each seat is mounted on a base 25 cm above the car floor and is 43 cm from the top of the seat plinth to the top of the seat cushion. The floor slopes down under each seat providing space for hand luggage, in addition to the overhead luggage storage located at every seat, except the single seat in the last row on the double-seat side. With the exception of the two seats in front of the modified single seat, the slope behind the seats provides a footrest for the person sitting behind.

The width of the aisle between the seats is 65 cm, from the first row of seats to the second last row of seats.

The following modifications have been made to the last row on the double seat side:

the seat support and the seat base have been removed
the existing seat has been put on a new seat support which can be fixed directly on the floor
both the seat and the seat support can be removed to provide a wheelchair tie-down space
there are attachments permanently fixed on the floor to secure a wheelchair
behind the removable seat, an air duct in the shape of a wedge, which measures 20 cm long by 44 cm wide by 49 cm high, lies at the base of the bulkhead wall. The distance from the exterior wall to the side of the air duct is 15 cm.
the length of the floor space measured from the air duct to a vertical line drawn from the top of the double seat steel support in front of the tie-down is 95 cm
the length of the floor space measured from the air duct to the end of the opening at the base of the modified double seat supporting structure in front of the tie-down is 150 cm
a different supporting seat structure was installed on the double seats in front of the tie-down area. The lower part of the supporting seat structure is open to the tie-down space. The floor space below the overhanging double seat structure in front of the tie-down space is 34 cm deep by 113 cm wide and 47 cm high
the width of the floor space at the end of the opening at the base of the modified double seat support in front of the tie-down is 113 cm; and the width of the floor space at the beginning of the opening, measured from the exterior wall to the base of the single seat across the aisle is 189 cm
a bi-fold table, the same as those located at all other seats, was installed on the back of the double seat steel support nearest the car window; it is 66 cm above the floor and measures 51 cm long by 42 cm wide when fully deployed; the table can be raised by VIA personnel approximately 20 cm by moving it to the upper position of the table supporting structure
the clear height from the floor to the bottom of the supporting structure of the folding table in the lower position is 42 cm.

There is a movable armrest between the double seats. There are also 3 seats on the single seat side equipped with a liftable aisle armrest. The removable seat in the last row also has a liftable aisle armrest.

There is a sliding glass door at the end of the aisle, which recedes into the bulkhead wall separating the seating area from two washrooms located behind the last row of seats. The width of the bulkhead opening is 74 cm. The aisle increases in width from 74 cm at the bulkhead door to 98 cm at the end adjacent to the opening to the gangway. The washrooms are located on each side of this aisle.

There are three washrooms in the coach car: one washroom is located in the car vestibule and the other two washrooms are located behind the bulkhead walls, after the last row of seats, one on each car side. The interior dimensions of these two washrooms are 130 cm long by 83 cm wide at the front (large) end and 53 cm wide at the back (narrow) end. The doors of these two washrooms slide into the wall. Once opened, the available width is 44 cm.

The washroom in the vestibule is not being used. This is the washroom that VIA had, at one point, intended to remove.

The toilets have a lid and the flush control is a push button. There are three grab bars in the washrooms: on the wall to the left of the sink; behind the toilet; and, to the right of the toilet. Faucets on the sinks are push button and the water temperature is controlled by turning a knob.

The gangway between the end of the economy coach car and the service car is 100 cm wide at wall level but only 82 cm wide at the floor level.

The steel floor in the gangway is covered with rubber pads. Space between the pads makes the floor uneven.

B - Inspection observations

Only some of the Renaissance coach cars will be designated as economy cars. The remaining coach cars will be modified to provide VIA-1 service.

The tie-down space provided at the end of the economy coach car will normally be occupied by the removable seat. Upon request, the seat will be removed to provide space for a wheelchair. The removable seat, when not in use, will be stored in the Service Car storage room. As well, if a person in a wheelchair desires, he/she may use the removable seat and his/her wheelchair will be stored in the same storage room or in the baggage car.

Attendants accompanying persons with disabilities occupying either the tie-down area or the removable seat in the tie-down area will be seated across the aisle in the single seat.

An onboard wheelchair will be available on each train. The chair is 36 cm wide and the seat is 50 cm above floor level. The onboard wheelchair will be kept in a storage room located in the service car.

Top of Page

SERVICE CAR

A - Inspection

At each end of the car, there is a vestibule with two exterior doors, one on each side of the car. At the end of the car where the "accessible suite" is located, the width of the exterior door openings is 107 cm. Once the exterior door is opened, the available width measured from the door to the door frame is 86 cm, due to a portion of the door obstructing the opening. Due to the door frame being angled with the interior vestibule wall, the clear width is further reduced to 80 cm, when measured between the door jamb and the horizontal line drawn from the interior wall of the vestibule.

The service car has a lounge area that is accessed by a corridor from both ends of the car. The lounge area has been increased in size by removing two closed offices. There are no tie-downs in the lounge; the lounge area has seating capacity.

There is a chrome and glass door in the corridor at the lounge end of the service car. The corridors are 52 cm wide at floor level and 49 cm at the chrome door. The door in the corridor near the suite has been removed.

Along the corridor leading to the "accessible suite", there is one office space and a storage room.

There is one washroom in the service car, which is the "wheelchair accessible washroom" in the "accessible suite" located at one end of the service car.

Access to the "accessible suite" is from the vestibule. The vestibule is 132 cm wide.

The "accessible suite" door opening has been increased to 75 cm in width. The suite has two sections.

The first section is the sleeper unit, which has two bench seats on the right side, and a folding table by the window on the left side. Dimensions of the table are 60 cm long, 46 cm wide and 75 cm high.

Floor dimensions of this section are 136 cm long by 120 cm wide, with the table in the down position. The width available is reduced to 81 cm when the folding table is in the up position.

There are two beds. One is located behind the seat backs, and the second one unfolds from the wall, above the seats.

The second section is the "wheelchair accessible washroom". The washroom can only be accessed by passing through the first section of the "accessible suite". It is equipped with a toilet and a sink, and has no shower.

Floor dimensions of this section are: 151 cm long by 137 cm wide at the widest point, and 114 cm wide at the narrowest area. The interior wall of the sleeper unit protrudes into the washroom at the entrance for a distance of 60 cm from the entrance to the washroom. The door width has been increased to 75 cm.

The toilet seat is 47 cm above the floor with the lid raised. The toilet flush control is a push button protruding from the wall behind the toilet. The width of the toilet is 37 cm and the distance from the exterior wall to the centre of the toilet is 35 cm.

The sink is positioned on an angle in the corner facing the toilet. The faucets are operated by pulling levers.

A flip-up grab bar is mounted on the back wall. In the down position, it is 81 cm long and the top of the bar is 74 cm high from the floor. It is located to the right of the toilet, at a distance of 70 cm from the exterior wall. An anti-slip tape was added on the top bar.

There are also two fixed grab bars, each 5 cm from the walls: one is located on the exterior wall and one on the inside wall, to the left of the dressing mirror.

There are two mirrors in the washroom: one is located above the sink and is on the exterior wall. The base of the mirror is 109 cm from the floor, and the centre is 151 cm from the floor. The second mirror is a tall dressing mirror located on the inside wall, with its base 44.5 cm from the floor and the centre is 109 cm from the floor.

There is an intercom/telephone in the bedroom section of the "accessible suite", which is designed to allow passengers to reach a VIA employee in the service galley.

Both the suite and the washroom electric sliding doors are operated by pushing buttons that either open, close, or lock the doors. An electronic eye system at each door prevents the doors from closing on a person going through the entrance.

B - Inspection observations

The following information was provided concerning the different uses of the "accessible suite" and the "wheelchair accessible washroom:

Corridor day trips:

only coach and service cars will form part of train consists;
passengers will not be able to book the "accessible suite";
the "wheelchair accessible washroom" will be locked to general public use;
a key to the "wheelchair accessible washroom " will be provided for the exclusive use of passengers who use a wheelchair and who occupy a tie-down space in the coach car;
the sign pictured in VIA's document "Accessibility Program - Renaissance Train" will be placed on the outside of the "accessible suite" door; the pictogram identifies the location of the "wheelchair accessible washroom".

Corridor night trips:

the "wheelchair accessible washroom" will be locked to general public use;
the "wheelchair accessible washroom" sign will be removed if a person with a disability has paid for the use of the "accessible suite", in which case, only the occupants of the suite will have access to the "wheelchair accessible washroom";
if the "accessible suite" has not been reserved by a person with a disability and if a person with disability books passage to use the tie-down space in the coach car, they will automatically be upgraded to the accessible suite at no cost to the passenger.

Trips that span day and night:

the "wheelchair accessible washroom" will be locked to general public use;
multiple service cars will be available;
some of the "wheelchair accessible washrooms" will be available to persons with disabilities who reserve the use of an "accessible sleeping suite" and others will be for the exclusive use of passengers who use a wheelchair and travel in a coach car, in which case the key will be provided to these passengers.

In order for a person with a disability travelling in the tie-down area of the economy coach car to access the "wheelchair accessible washroom" in the service car, the train consists will, with the exception of the Montréal-Toronto train consist, ensure that a coach car will always be attached to the service car, back to back. That way the person with a disability in the tie-down area of the coach car would be able to go to the "wheelchair accessible washroom" in the suite by going from the coach car to the service car through the vestibule. This would represent a distance of approximately 7 m.

Anti-slip tape has been put on the grab bars in the "accessible washroom".

An electronic information display has been added in the bedroom of the "accessible suite" as well as in the vestibule near the entrance to the "accessible suite".

A Braille sign was installed on the exterior door frame of the "accessible suite".

Top of Page

SLEEPER CAR

A - Inspection

The bedrooms are accessed by a corridor. The corridor is 52 cm wide at floor level, and reduces to 50 cm where the chrome door was previously located.

The sleeper car consists of 10 bedrooms, each equipped with a washroom. Six of them are "deluxe bedrooms" and also have a shower in the washroom. The door opening to the bedrooms is 53 cm wide. At floor level, the free space in the bedroom is 191 cm long by 72 cm wide.

The floor level dimensions of the washroom in the "deluxe bedroom" are 78 cm wide by 102 cm long.

The toilets have a lid and the flush control is a push button. There are three grab bars in the washrooms: one is located above the toilet and the other two are located near the sink.

There is an intercom/telephone in each bedroom which can be used to obtain assistance.

Each bedroom accommodates 2 adults.

B - Inspection observations

Modifications to the sleeper car consist of the addition of braille and raised-lettering signage in the hallway to identify room numbers, as well as electronic information displays in bedrooms. A visual alarm was also installed on the ceiling of each bedroom.

GENERAL INFORMATION

Inspection observations

Details on the car steps are:

From the car out:

First step: 73.5 cm wide x 26 cm deep.
Second step: 73.5 cm wide x 22 cm deep
Third step: 80 cm wide x 23 cm deep

Risers:

between the car floor and first step: 25.5 cm - closed riser
between the first and second step: 24.5 cm - open riser
between the second and third step: 24 cm - closed riser

The step box measures 36 cm x 36 cm square and is 28 cm high.

Braille signage was put on the glass sliding doors in the vestibules near the push buttons, which open and close the doors.

VIA advised that new fibreglass bridges were designed to facilitate boarding at level platforms.

Top of Page

Appendix B

SUMMARY OF FINDINGS IN CANADIAN TRANSPORTATION AGENCY DECISION NO. 175-AT-R-2003 DATED MARCH 27, 2003

COACH CAR

Issue

Aisle between the two washrooms in the economy coach car (p. 98): Obstacle and show cause why not undue
Aisles between the seats in the coach cars (p. 64): Obstacle and not undue
Accessibility of the aisles in the coach cars to persons using mobility aids other than wheelchairs (p. 57): Obstacle not shown to exist
Height of seats and 25-centimetre (9.84") step-up onto the seat platform in the coach cars (p. 59): Obstacle and not undue
Movable aisle armrests on coach car seats (p. 75): Obstacle and show cause why not undue
Space in the coach cars for service animals (p. 128): Obstacle and show cause why not undue
Coach car washrooms (p. 138): Obstacle and deferred undueness
Accessibility of the coach car washrooms to persons using mobility aids other than wheelchairs (p. 57): Obstacle not shown to exist
Portion of washrooms is in the Crash Energy Management Zone (p. 47): Transport Canada safety
Travel through the Crash Energy Management Zone to reach the "accessible washroom" (p. 47): Transport Canada safety
Means of exit for persons who use a wheelchair if the Crash Energy Management Zone: collapses (p. 47): Transport Canada safety

Wheelchair tie-downs

Clear floor space of the wheelchair tie: down to accommodate a stationary wheelchair (p. 81) - Obstacle and show cause why not undue
Manoeuvring space in the wheelchair tie: down area to enter and exit the wheelchair tie-down (p. 85) - Obstacle and show cause why not undue
Space for attendants (p. 87): Obstacle and show cause why not undue
Width of bulkhead door opening (p. 95): Obstacle and show cause why not undue
Safety of the tie-down area (p. 47): Transport Canada safety

SERVICE CAR

Issue

Exterior doors to the service car situated at the end closest to the "accessible suite" (p. 72): Obstacle and not undue
Vestibule (p. 49): Obstacle not shown to exist
Aisles in the service cars (p. 64): Obstacle and not undue
Storage of wheelchairs in the baggage car or service car storage room (p. 53): Obstacle not shown to exist
Exit from the "accessible suite" through the vestibule in the Crash Energy Management Zone (p. 47): Transport Canada safety

"Accessible suite"

Issue

Doors in the "accessible suite" (p. 105): Obstacle and show cause why not undue
Bench seat in the sleeper unit (p. 55): Obstacle not shown to exist
Front transfer to the toilet (p. 55): Obstacle not shown to exist
Privacy in the washroom (p. 55): Obstacle not shown to exist
Access to the sink in the washroom (p. 56): Obstacle not shown to exist
Space for an attendant in the washroom (p. 56): Obstacle not shown to exist
Height of toilet seat in the "accessible washroom"(p. 67): Obstacle and not undue
Lack of shower in the "accessible washroom" (p. 69): Obstacle and not undue
Location of the "accessible washroom" (p. 138): Obstacle and deferred undueness
Inability to retain a wheelchair in the "accessible suite" (p. 109): Obstacle and show cause why not undue
Space to perform side transfers to the toilet (p. 113): Obstacle and show cause why not undue
Turning diameter within the "accessible suite" (p. 119): Obstacle and show cause why not undue

SLEEPER CAR

Issue

Aisles in the sleeper cars (p. 64): Obstacle and not undue
Accessibility of the aisles in the sleeper cars to persons using mobility aids other than wheelchairs (p. 57): Obstacle not shown to exist
Sleeper units/washrooms (p. 142): Obstacle and deferred undueness

GENERAL ISSUES

Issue

Safety of bridge plates and boarding lifts (p. 47): Transport Canada safety
Stairs: Riser heights and depths of steps (p. 124): Obstacle and show cause why not undue
Lack of closed stair risers (p. 125): Obstacle and show cause why not undue
Safety of retractable stairs (p. 47): Transport Canada safety
Safety of gangway while trains is in motion (p. 47): Transport Canada safety
Potential misalignment of the gangway in a the event of a derailment (p. 47): Transport Canada safety
Electro-luminescent signs for emergency exits and other signs (p. 47): Transport Canada safety
Onboard services (p. 51): Obstacle not shown to exist

Train consists

Québec-Windsor Corridor, Montréal-Halifax and Montréal-Gaspé services (p. 133) - Obstacle and not undue
Montréal-Toronto overnight service (p. 133) - Obstacle and show cause why not undue

Note: the page numbers denote the first page of the Agency Analysis.

Top of Page

Diagram of the economy coach car suite and the service car "accessible suite"

175-AT-R-2003 Description of diagram follows

Description of Diagram

This diagram provides measurements in portions of the Economy Coach Car and the Service Car, as well as the Gangway which connects these two cars.

The portion of the Economy Coach Car that is depicted in the diagram is from the last two rows of seats to the end of the car that contains two washrooms. The seating section of the car shows a 65-centimetre wide aisle at the second last row, which separates double seats on one side of the aisle and one seat on the other side of the aisle. The double seats are 128 cm wide, while the floor space under these seats is 113 cm wide.

In the last row, behind the double seats, is a wheelchair tie-down, and behind the single seat, is another single seat. Behind the last seat and the tie-down area are bulkhead walls with a receding bulkhead door in the middle of these walls.

There is a tray table in the wheelchair tie-down area, which is attached to the back of the seat nearest the exterior wall, which forms part of the double seats located in front of the tie-down. On the bulkhead wall behind the tie-down is an air duct that measures 20 cm in length and 44 cm in width. The distance from the exterior wall to the side of the air duct is 15 cm.

The length distance from the air duct to a vertical line drawn from the top of the double-seats in front of the tie-down is 95 cm. The length measured from the air duct to the end of the opening at the base of these double seats is 150 cm. The width measured from the exterior wall in the tie-down area to the single seat in the last row on the other side of the car is 189 cm.

The bulkhead walls and bulkhead door separate the seating area from two washrooms located at the rear of the Economy Coach Car. The door recedes in the bulkhead wall behind the tie-down. The bulkhead door opening is 74 cm wide.

The washrooms are located on each side of an aisle and occupy the space between the bulkhead wall and the end of the Economy Coach Car. The aisle between the two washrooms widens from 74 cm at the end adjacent to the bulkhead door to 98 cm at the end of the car adjacent to the Gangway. Each washroom has a sink located on the bulkhead wall facing a toilet. Each toilet is located at an angle on the wall at the end of the car. The washrooms are 130 cm long and 83 cm wide at the bulkhead end of the washroom and 53 cm wide at the end closest to the Gangway. The doorway to the washrooms is 44 cm wide.

The opening to the Gangway from the Economy Coach Car is 98 cm wide. The width of the Gangway is 100 cm, which reduces to 82 cm at floor level. The opposite end of the Gangway is 98 cm wide and opens to a vestibule in the Service Car.

The portion of the Service Car that is depicted in the diagram is from the vestibule-end of the car to the wall at the far end of the "accessible suite". The vestibule, which spans the full width of the Service Car, measures 247 cm from one exterior wall to the other, and 132 cm from the end of the car that connects to the Gangway, to the wall which contains the entrance to the "accessible suite". There is an exterior door and a set of stairs located on each side of the vestibule. The diagram shows an open exterior door on one side of the car, which is positioned across the exterior wall of the Service Car body. A portion of the door obstructs the opening. The width of the exterior door opening, measured from door frame to door frame, is 107 cm. The width measured from the end of the open door to the door frame is 86 cm. The width of the door opening, measured between a footplate, which is on the floor of the vestibule immediately in front of the door, and the horizontal line drawn from the angled interior wall of the vestibule, is 80 cm.

An aisle, which measures 52 cm wide at floor level, extends from the vestibule along one side of the Service car. The interior wall of the aisle is the side wall of the "accessible suite". The entrance to the "accessible suite" is from the vestibule and is located near the exterior door described above. The door to the "accessible suite" is 75 cm wide.

The "accessible suite" is composed of a sleeper unit and an adjoining washroom. Upon entering the "accessible suite" from the vestibule, there is the sleeper unit, which contains bench/bunk beds located along the interior wall of the suite and a folding table located along the exterior wall, opposite the bench/bunk beds. The sleeper unit measures 120 cm wide between the beds and the folding table and 136 cm long from the entrance to the door to the adjoining washroom.

The interior wall of the sleeper unit, against which is situated the bench/bunk beds, protrudes into the washroom for a distance of 60 cm. The door to the washroom is 75 cm wide. The washroom is 151 cm long and 114 cm wide at the narrowest point near the doorway, and 137 cm wide at the widest point along the wall at the opposite end of the washroom that is opposite to the door. There is an interior space between the "accessible washroom" and the Service Car aisle.

There is a sink in the corner to one side of the door to the washroom, located along the exterior wall and against a 40-centimetre wall that separates the washroom from the sleeper unit. The toilet, which is 47 cm high, is located against the back wall and faces the sink. The width of the toilet is 37 cm and the distance from the exterior wall to the centre of the toilet is 35 cm. A grab bar measuring 81 cm in length, extends from the back wall, next to the toilet at a distance of 70 cm from the exterior wall.

Back to rulings

Date modified:: 2003-03-27

Decision No. 175-AT-R-2003

TABLE OF CONTENTS

PARTIES

Intervener

INDIVIDUALS WHOSE REPORTS AND COMMENTS FORM PART OF CCD'S AND VIA'S SUBMISSIONS

CCD

VIA

DEFINITIONS

ABBREVIATIONS

OVERVIEW

BACKGROUND

FRAMEWORK OF THE DECISION

1. The legislative framework

2. Part V of the CTA as human rights legislation and the application of the Canadian Charter of Rights and Freedoms, R.S.C., 1985, Appendix II, No. 44 Schedule B.

a) Human rights legislation

b) Charter values

c) Segregation and subsection 15(1) of the Charter

3. Principles of accessibility

4. The Code of Practice - Passenger Rail Car Accessibility and Terms and Conditions of Carriage by Rail of Persons with Disabilities (Rail Code)

The Rail Code

Application of the Rail Code

5. Canadian Standards Association's CAN/CSA-B651-95 Barrier-Free Design Standard

CSA Barrier-Free Design Standard

Application of the CSA Barrier-Free Design Standard

6. Personal Wheelchair as a standard to assess accessibility

PRELIMINARY ISSUES

1. Jurisdiction

2. Evidentiary

3. Renaissance Cars - newly manufactured cars or existing cars

DETERMINATION PURSUANT TO SECTION 172 OF THE CTA OF OBSTACLES AND WHETHER THEY ARE UNDUE

1. The determination of obstacles

2. The determination of the undueness of obstacles

a) Undueness in general

VIA

CCD

Analysis

b) Network argument

VIA

CCD

Analysis

b) General structural arguments

VIA

CCD

Analysis

General economic arguments

VIA

CCD

Analysis

AGENCY DETERMINATIONS

I - SAFETY ISSUES

II - FINDINGS OF NO OBSTACLES

1. Vestibule

Facts

Positions of parties

CCD

VIA

Analysis

2. Onboard services

Facts

Positions of parties

CCD

VIA

Analysis

3. Storage of wheelchairs in the baggage car or service car storage room (The reader should note that this matter is separate from the question of whether a person with a disability should be able to retain his/her wheelchair in the "accessible suite" which is discussed later.)

Facts

Positions of parties

CCD

VIA

Analysis

4. "Accessible suite" (This section deals with features in the "accessible suite" that the Agency has found that CCD has not demonstrated constitute obstacles to the mobility of persons with disabilities. Other features of the "accessible suite" are discussed later in this Decision.)

Facts

Positions of parties

CCD

VIA

Analysis

i) Bench seat in the sleeper unit

ii) Front transfers to the toilet

iii) Privacy in the washroom

iv) Access to the sink in the washroom

v) Space for attendant in the washroom