Decision No. 178-AT-R-2013

INTRODUCTION

[1] Nelly Sabbagh filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) against VIA Rail Canada Inc. (VIA), with respect to the disability-related services she required from VIA to reach the boarding platforms at the Montréal Central Station on July 31, 2011; the Ottawa Station on October 5, 2012; and the Dorval Station on May 21 and October 8, 2012.

PRELIMINARY MATTER

[2] Ms. Sabbagh raises concerns regarding the fact that she was not pre-boarded when she travelled from the Ottawa Station on October 5, 2012. Ms. Sabbagh’s concerns relate to client services; however, a problem with client services does not become an obstacle merely because it is experienced by a person with a disability.

[3] The Agency finds that Ms. Sabbagh has not established that pre-boarding is a service she requires to meet her disability-related needs. The Agency therefore dismisses this part of Ms. Sabbagh’s application.

ISSUES

1. Is Ms. Sabbagh a person with a disability for the purposes of Part V of the CTA?
2. What measures provide appropriate accommodation/reasonable accommodation to persons with disabilities, including Ms. Sabbagh, who require wheelchair assistance to and from the boarding platform when that entails a change in floor levels?
3. Do VIA’s policies-and how VIA applies them-for providing wheelchair assistance to persons with disabilities, including Ms. Sabbagh, to and from the boarding platform when that entails a change in floor levels at the following stations constitute an undue obstacle to their mobility and, if so, what corrective measures should be ordered:

a)  the Montréal Central Station;

b)  the Ottawa Station; and,

c)  the Dorval Station?

THE LAW

[4] When adjudicating an application pursuant to subsection 172(1) of the CTA, the Agency applies a three-step process to determine whether there is an undue obstacle to the mobility of a person with a disability. The Agency must determine whether:

1. the person who is the subject of the application has a disability for the purposes of the CTA;
2. an obstacle exists because the person was not provided with appropriate accommodation to address their disability-related needs. An obstacle is a rule, policy, practice, physical barrier, etc. that has the effect of denying equal access to services offered by the transportation service provider that are available to others; and,
3. the obstacle is “undue”. An obstacle is undue unless the transportation service provider demonstrates that there are constraints that make the removal of the obstacle either unreasonable, impracticable or impossible, such that to provide any form of accommodation would cause the transportation service provider undue hardship. If the obstacle is found to be undue, the Agency may order corrective measures necessary to remove the undue obstacle.

1. IS MS. SABBAGH A PERSON WITH A DISABILITY FOR THE PURPOSES OF PART V OF THE CTA?

[5] In determining whether there is an obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first establish whether the application was filed by, or on behalf of, a person with a disability.

[6] Ms. Sabbagh uses a cane for walking and requires wheelchair assistance to move between the train station and the boarding platform. Ms. Sabbagh submits that if she exerts her body too strenuously or is subjected to physical stress beyond her capacity, she experiences “severe flare‑ups for a prolonged period of time”, which she submits results in “a diminished capacity to properly function and enjoy daily life.”

[7] In light of the foregoing, the Agency finds that Ms. Sabbagh is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

2. WHAT MEASURES PROVIDE APPROPRIATE ACCOMMODATION/REASONABLE ACCOMMODATION TO PERSONS WITH DISABILITIES, INCLUDING MS. SABBAGH, WHO REQUIRE WHEELCHAIR ASSISTANCE TO AND FROM THE BOARDING PLATFORM WHEN THAT ENTAILS A CHANGE IN FLOOR LEVELS?

THE AGENCY’S APPROACH TO DETERMINING APPROPRIATE ACCOMMODATION/REASONABLE ACCOMMODATION

[8] A service or measure that is required to meet a person’s disability-related needs is referred to as “appropriate accommodation”. If it is determined that the person was provided with appropriate accommodation, it cannot be said that they have encountered an obstacle.

[9] There are situations in which a variety of accommodation measures may meet a person’s disability-related needs. The accommodation measure does not have to be exactly what the person requests, but it must be effective.

[10] Service providers meet their duty to accommodate if they provide accommodation that allows a person with a disability to benefit from the same level of transportation services afforded to others.

[11] Service providers are entitled to choose the least costly, disruptive or burdensome means of accommodation when it is equally responsive to the person’s disability-related needs.

[12] However, in situations where different means of accommodation are equally responsive and are neither less costly, disruptive or burdensome for the service provider, the person with a disability should be entitled to choose their preferred means of accommodation.

[13] “Reasonable accommodation” is the form of accommodation that does not create undue hardship on the service provider and is considered to be “next best” to appropriate accommodation. “Reasonable accommodation” is considered at the undue obstacle step in the Agency’s three-step process (as indicated in paragraph 4) and only if the transportation service provider establishes undue hardship with respect to the “appropriate accommodation” identified at the obstacle step.

[14] Although measures that constitute reasonable accommodation will meet some of a person’s disability-related needs, they do not meet all of them. For example, they may entail a higher risk of injury or accident, or may negatively impact the person’s sense of safety, security or dignity. As a result, the person’s disability-related needs are not as effectively met as they would be if the person was provided with appropriate accommodation.

THIS CASE

[15] To determine whether VIA’s policies-and how VIA applies them-for providing wheelchair assistance to persons with disabilities to and from the boarding platform when that entails a change in floor levels at the Montréal Central Station, the Ottawa Station and the Dorval Station constitute obstacles for such persons, including Ms. Sabbagh, the Agency must first determine the measures needed to provide appropriate accommodation, i.e., the measures required to meet their disability-related needs. The Agency looks broadly at the needs of persons with disabilities similarly affected by an issue to identify the measures required to ensure equal access.

[16] To provide equal access to the federal transportation network, the Agency considers, in this case, that the appropriate accommodation for persons with disabilities, including Ms. Sabbagh, who require wheelchair assistance to and from the boarding platform when that entails a change in floor levels is the provision of a reliable, timely, pain-free and dignified method of accommodation for which the degree of risk is reasonable. Accommodations that do not meet these criteria would not constitute appropriate accommodation but may provide reasonable (next best) accommodation.

[17] The parties identified the following five possible measures for providing appropriate or reasonable accommodation, specifically:

1. a wheelchair stair lift (a mechanized lift designed to transport persons in wheelchairs up and down stairs);
2. ground-level crossing from the station to the platform;
3. service elevators as well as baggage and supply ramps;
4. travel from another station or on another train; and,
5.  escalators with the person remaining in the wheelchair.

[18] These five measures are addressed below in the Agency’s assessment of which measures represent appropriate accommodation or reasonable accommodation.

Wheelchair stair lift

Facts, evidence and submissions

VIA

[19] VIA provides wheelchair stair lifts at the Montréal Central Station to assist persons using wheelchairs to and from the boarding platforms. VIA states that the wheelchair stair lift is safe and operationally effective and is one of the least costly and least disruptive options for providing wheelchair assistance to passengers when reaching the boarding platform entails a change in floor levels.

Ms. Sabbagh

[20] Ms. Sabbagh states that she would prefer to be offered the use of a wheelchair stair lift at the Montréal Central Station than to be transported down an escalator while in a wheelchair. She is of the opinion that she should then have “the option of being transported properly and humanely on the Garaventa lift”.

Analysis and findings

[21] A wheelchair stair lift is specifically designed to transport persons using wheelchairs between floors. The person receives a reliable, timely, pain-free and dignified method of accommodation for which the degree of risk is reasonable. Additionally, this method of accommodation does not require a change in the way the person is using the wheelchair; i.e., the wheelchair is not tilted and the person is not required to adopt a body position to counterbalance the tilting of the wheelchair. The Agency finds that a wheelchair stair lift provides appropriate accommodation for persons with disabilities, including Ms. Sabbagh, who require wheelchair assistance to and from the boarding platform when that entails a change in floor levels.

Ground-level crossing from the station to the platform

Facts, evidence and submissions

VIA

[22] VIA assists persons who use wheelchairs across the tracks at the Ottawa Station in order for such persons to reach the south boarding platform. VIA points out that it owns the tracks at the Ottawa Station, dispatches its own trains, and that the train speed limit at the Ottawa Station is 5 mph. VIA conducted a hazard and risk study regarding the ground-level crossing at the Ottawa Station, and determined that providing this accommodation to persons using wheelchairs to reach the south boarding platform is safe.

[23] VIA states that persons who use wheelchairs are not permitted to cross the tracks to reach the north boarding platform at the Dorval Station. Both VIA and the owner of the tracks, the Canadian National Railway Company (CN), have concluded that crossing the tracks is too risky at the Dorval Station due to the continuous traffic and the high risk of bodily injury or death. VIA notes that the train speed limit is 40 mph at this station.

Ms. Sabbagh

[24] Ms. Sabbagh submits that as she cannot use the escalator, she prefers the option available at the Ottawa Station where she is taken across the tracks in order to reach the south boarding platform. This had also been Ms. Sabbagh’s preferred method for accessing the north boarding platform at the Dorval Station; however, VIA no longer permits passengers to use the ground-level crossing at that station.

Analysis and findings

[25] Ground-level crossings, where safe, provide persons using wheelchairs a reliable, timely, pain‑free and dignified method of accommodation for which the risk is reasonable. Similar to the wheelchair stair lift, this method of accommodation does not require a change in the way the person is using the wheelchair; i.e., the wheelchair is not tilted and the person is not required to adopt a body position to counterbalance the tilting of the wheelchair.

[26] The Agency finds that a ground-level crossing, where safe, provides appropriate accommodation for persons with disabilities, including Ms. Sabbagh, who require wheelchair assistance to and from the boarding platform when that entails a change in floor levels.

Service elevators as well as baggage and supply ramps

Facts, evidence and submissions

VIA

[27] VIA indicates that when a person using a wheelchair is unable to use the wheelchair stair lift at the Montréal Central Station because of the weight or size of the wheelchair or because the wheelchair stair lift is broken, it offers the baggage department service elevator and the ramps typically used by machine operators for transporting supplies and baggage. According to VIA, its procedures for transporting a person in a wheelchair safely along these ramps include notifying relevant station employees, obtaining authorization and travelling through the safest section of the ramps.

Ms. Sabbagh

[28] With respect to service elevators in the baggage department, Ms. Sabbagh refers to a statement from a representative of the Council of Canadians with Disabilities (CCD) in which the CCD representative, who uses a wheelchair, indicates that while she was travelling from the Montréal Central Station, she insisted that she would not use the escalator and was escorted to a freight elevator that took her to the train platform. The CCD representative also states that she is of the opinion that, although this was a longer route not used by the travelling public, it was safer than using the escalator.

Analysis and findings

[29] It is clear that ramps and elevators that are intended for use by the travelling public and are not used primarily for transport of supplies and baggage provide reliable, timely, pain-free and dignified methods of accommodation. The Agency finds that such publicly-available elevators and ramps constitute appropriate accommodation for persons with disabilities, including Ms. Sabbagh, who require wheelchair assistance to and from the boarding platform when that entails a change in floor levels.

[30] While VIA’s policy includes offering service elevators as well as baggage and supply ramps when it is not possible for the person using a wheelchair to use the wheelchair stair lift, VIA has not established that service elevators or baggage and supply ramps provide timely or dignified accommodation. In terms of timeliness, Ms. Sabbagh notes that the CCD representative described the route involving the freight elevator as being a longer route. Additionally, the Agency notes that such routes require notifying relevant station employees, obtaining authorization and determining the safest section of the ramps, which are additional procedures that add time to the boarding process. In terms of the principle that accommodation should respect a person’s dignity, using a freight elevator and ramps typically used by machine operators for transporting supplies and baggage offers a less dignified means of accommodation than using methods intended for the general public.

[31] The Agency finds that service elevators as well as baggage and supply ramps are not equally responsive in meeting a person’s disability-related needs because they are less timely and dignified than the appropriate accommodation. Therefore, the Agency finds that the service elevators as well as baggage and supply ramps do not constitute appropriate accommodation and, as such, constitute reasonable (next best) accommodation, and should only be considered when providing appropriate accommodation would result in undue hardship on VIA.

Travel from another station or on another train

Facts, evidence and submissions

VIA

[32] VIA indicates that the north boarding platform at the Dorval Station is inaccessible to persons using wheelchairs. VIA adds that when the train is scheduled to board or disembark at the north boarding platform and there is a passenger using a wheelchair, its policy is to make arrangements with CN, if feasible, so that the train will board from the south boarding platform, which is accessible to persons using wheelchairs. VIA points out that for operational or safety reasons, CN can make track dispatching changes up to the last minute which are communicated to the Dorval Station employees who then interact with passengers at the station. If dispatching the train to the south track is not feasible, VIA offers persons using wheelchairs free transportation to the Montréal Central Station, which is 20 minutes away. VIA is of the opinion that its alternate transportation policy provides reasonable accommodation and that this policy does not constitute an undue obstacle to the mobility of persons using wheelchairs.

Ms. Sabbagh

[33] Ms. Sabbagh submits that when her train boarded from the north boarding platform at the Dorval Station on May 21, 2012, she was not offered alternative transportation. She is of the opinion that when the train boards from the north boarding platform, boarding the next accessible train or being transported free of charge to the Montréal Central Station are alternative means of getting across the tracks.

Analysis and findings

[34] Although transportation from a different station or on a different train does not negatively impact a person with a disability’s sense of safety and security, the person is not provided equal access to train services available to persons without disabilities in that they are unable to travel as planned according to their reservation and have fewer choices regarding the time and point of departure.

[35] The Agency finds that travel from a different station or on another train is not equally responsive in meeting a person’s disability-related needs because these options do not provide the same amount of choices regarding the time and point of departure or timely accommodation. Therefore, the Agency finds that this accommodation does not constitute appropriate accommodation for persons with disabilities, including Ms. Sabbagh, who require wheelchair assistance to and from the boarding platform when that entails a change in floor levels. As such, it constitutes reasonable (next best) accommodation and should only be considered when providing appropriate accommodation would result in undue hardship on VIA.

Escalator with the person remaining in their wheelchair

Facts, evidence and submissions

VIA

[36] VIA submits that the use of escalators is a long standing, safe practice for boarding persons with disabilities. To this end, VIA explains that only “red caps” who are trained in the procedure are authorized to bring a passenger using a wheelchair on an escalator, and that prior to doing so, the “red cap” evaluates the size of the wheelchair to ensure that it can be brought safely on the escalator. If the “red cap” finds that the escalator is not wide enough to accommodate the wheelchair, VIA’s policy requires that the wheelchair stair lift must be used.

[37] VIA states that when the “red cap” brings the passenger onto the escalator, the “red cap” is assisted by the station attendant and ensures that the wheelchair is placed equidistant from the handrails. The “red cap” slowly backs the wheelchair onto the escalator to ensure the rear wheels are securely on the step, and the wheelchair is easily stabilized on the steps of the escalator. VIA also notes that the wheelchair brakes must never be locked.

[38] VIA indicates that according to the procedure, the person in the wheelchair must lean forward holding the handrails, and not the wheelchair. In addition, station attendants are to prevent other persons from using the escalator, stop the escalator at any time or if requested, and watch over the passenger in the wheelchair while they are on the escalator.

[39] In support of its claim that the practice is safe, VIA states that its data for January 2007 to December 2012 indicate that this procedure has not resulted in any injuries either to persons in wheelchairs or to employees assisting persons on escalators. VIA also states that its Incident Management System, in use since January 2011, shows that of the 1,800 “employee incidents verified”, no incident involved a wheelchair and an escalator.

[40] VIA refers to a comment by the Canadian Centre for Occupational Health and Safety that “the health and safety record of the workplace is perhaps one ‘of the most important measures of its effectiveness’, when coupled with other parameters”, and expresses the view that the lack of incidents to date is a reliable factor in predicating passenger safety.

Ms. Sabbagh

[41] Ms. Sabbagh submits that being taken on an escalator backwards while in a wheelchair is “extremely unnerving” and causes her physical pain. She asserts that she felt “belittled and treated with a level of indignity.” Ms. Sabbagh adds that this process does not treat her as a “human being who should be transported with care and dignity” and does not provide equal treatment compared with passengers without disabilities. She is of the opinion that VIA has not considered “the sense of vulnerability, undue pain, and stress, as well as loss of dignity that passengers with special needs feel when they are being transported in such a hurried and crude manner by porters”.

[42] Ms. Sabbagh is of the opinion that this accommodation measure is not safe, secure or comfortable, and subjects passengers and employees to potential injury or accidents. Ms. Sabbagh expresses the view that the lack of past accidents does not necessarily predict the safety of passengers in the future.

Analysis and findings

[43] The Agency is of the opinion that the practice of transporting persons using wheelchairs on escalators carries a higher degree of risk for injury or accident compared with the measures discussed above which the Agency finds to constitute appropriate accommodation. Accidents caused by human error on the part of the “red cap” or the station attendants assisting in the procedure or destabilization of the wheelchair if it were not tilted at the right angle, are not predictable and could occur. Such incidents could have serious consequences to the health and safety of the person who uses the wheelchair and/or on VIA’s personnel. Ms. Sabbagh submits that she felt unsafe being transported down the escalator in a wheelchair; it is understandable that other persons in similar situations could feel the same way.

[44] Additionally, as described in VIA’s training manual, this procedure is partially dependent on the person taking a precautionary position; i.e., the person is required to lean forward holding the handrails, not the wheelchair. The Agency is of the opinion that not all persons with disabilities using wheelchairs would be able to do this, which would further contribute to the higher degree of risk for injury or accident associated with this practice. The Agency accepts that Ms. Sabbagh experienced physical pain and that being taken down the escalator while in a wheelchair detracted from her dignity.

[45] Although this practice may enable a person using a wheelchair to reach the boarding platform on time, it is reasonable to expect a negative impact on the person’s sense of safety, security and dignity. As such, the Agency finds that an escalator is not equally responsive in meeting a person’s disability-related needs because it does not provide a pain-free or dignified method of accommodation and it entails a higher degree of risk as compared to appropriate accommodation. Therefore, the Agency finds that an escalator does not constitute appropriate accommodation for persons with disabilities, including Ms. Sabbagh, who require wheelchair assistance to and from the boarding platform when that entails a change in floor levels and, as such, an escalator constitutes reasonable (next best) accommodation and should only be considered when providing appropriate accommodation would result in undue hardship on VIA.

[46] The Agency also finds that, due to the higher risk associated with using an escalator, in situations where VIA is unable to offer any form of appropriate accommodation without incurring undue hardship, in addition to offering the use of an escalator to a person using a wheelchair, it must also offer at least one other reasonable accommodation; for example, alternate transportation to another train station or travel on another train that would be accessible to the person.

Summary of Agency findings in respect of appropriate accommodation and reasonable (next best) accommodation

[47] The Agency finds that the following measures constitute appropriate accommodation for persons with disabilities, including Ms. Sabbagh, who require wheelchair assistance to and from the boarding platform when that entails a change in floor levels:

• wheelchair stair lifts;
• ground-level crossings, when safe;
• elevators that are intended for use by passengers; and,
• ramps that are intended for use by passengers.

[48] During day-to-day operations, a transportation service provider may find itself unable to offer any form of appropriate accommodation due to undue hardship on VIA (e.g. unforeseen mechanical failure or operational constraints), in which case reasonable (next best) accommodation may be provided.

[49] The Agency finds that the following measures constitute reasonable (next best) accommodation in this case. These measures should only be considered when providing the above appropriate accommodation measures would result in undue hardship on VIA:

• service elevators;
• baggage and supply ramps;
• travel from another station or on another train; and,
• escalators.

[50] The Agency is of the opinion that when a transportation service provider is unable to offer any form of appropriate accommodation to a person with a disability, it must inform the person of all possible reasonable accommodation measures and allow them to choose their preferred means of accommodation.

3. DO VIA’S POLICIES-AND HOW VIA APPLIES THEM-FOR PROVIDING WHEELCHAIR ASSISTANCE TO PERSONS WITH DISABILITIES, INCLUDING MS. SABBAGH, TO AND FROM THE BOARDING PLATFORM WHEN THAT ENTAILS A CHANGE IN FLOOR LEVELS AT THE FOLLOWING STATIONS CONSTITUTE AN UNDUE OBSTACLE TO THEIR MOBILITY AND, IF SO, WHAT CORRECTIVE MEASURES SHOULD BE ORDERED:

1. THE MONTRÉAL CENTRAL STATION;

2. THE OTTAWA STATION; AND,

3. THE DORVAL STATION?

THE AGENCY’S APPROACH TO DETERMINING AN OBSTACLE

[51] The Agency views an obstacle in the federal transportation network as being a rule, policy, practice, physical barrier, etc. which is either:

• direct, i.e., applies to a person with a disability; or
• indirect, i.e., while the same for everyone, has the result of withholding a benefit from a person with a disability; and,
• denies a person with a disability equal access to services that are available to others such that accommodation is required from the service provider.

[52] For an obstacle to exist, the problem must be related to the person’s disability. For example, a customer service issue does not become an obstacle merely because it is experienced by a person with a disability.

[53] Service providers have a duty to accommodate persons with disabilities. A person with a disability will face an obstacle to their mobility if they demonstrate that they need – and were not provided with – accommodation, thereby being denied equal access to services available to others in the federal transportation network. It is the applicant’s responsibility to provide sufficiently persuasive evidence to establish their need for accommodation and to prove that this need was not met. The standard of evidence which applies to this burden of proof is the balance of probabilities.

[54] When determining if an obstacle to the mobility of a person with a disability exists, the Agency is, in essence, establishing whether their disability-related needs were met.

THE AGENCY’S APPROACH TO DETERMINING WHETHER AN OBSTACLE IS UNDUE

[55] An obstacle is undue unless the service provider can justify its existence. Once the Agency has determined that a person with a disability has encountered an obstacle, the service provider may either:

• provide the appropriate accommodation or offer an alternative that is equally responsive in meeting the disability-related needs of the person. In such a case, the Agency will determine what corrective measures are required to ensure that the appropriate accommodation is provided; or
• justify the existence of the obstacle by demonstrating that it can neither provide the appropriate accommodation nor provide any other form of accommodation without incurring undue hardship. The burden of proof is on the service provider to demonstrate that providing the accommodation would result in undue hardship. If it fails to do so, the Agency will find that the obstacle is undue and order corrective measures to ensure that accommodation is provided.

[56] In situations where the service provider is of the view that it cannot provide the accommodation that is responsive to the needs of the person with a disability, it must justify the existence of the obstacle.

[57] The test that a service provider must meet in order to justify the existence of an obstacle consists of three elements. The service provider must demonstrate that:

1. the source of the obstacle is rationally connected to the provision of the transportation service;
2. the source of the obstacle was adopted based on an honest and good faith belief that it was necessary in order to provide the transportation service; and,
3. it cannot provide any form of accommodation without incurring undue hardship.

[58] It is the responsibility of the service provider to provide sufficiently persuasive evidence to establish on a balance of probabilities that the obstacle is justified (i.e., that to provide any form of accommodation would result in undue hardship).

[59] If a service provider meets this burden of proof, the Agency will find that the obstacle is not undue and will not order any corrective measures.

THE MONTRÉAL CENTRAL STATION

Facts, evidence and submissions-Obstacle

VIA

[60] VIA indicates that wheelchair stair lifts are available at the Montréal Central Station. VIA states that its policy is to offer the option of using the escalator or the wheelchair stair lift, which it submits does not constitute an undue obstacle.

[61] VIA states that Ms. Sabbagh’s July 31, 2011 reservation for travel from the Montréal Central Station has been purged from its system and, therefore, it cannot ascertain whether a special service request for wheelchair assistance was noted in her reservation file. VIA adds that given the long delay between Ms. Sabbagh’s trip and the filing of her application with the Agency, VIA cannot identify the “red cap” who assisted Ms. Sabbagh, the conversation the “red cap” apparently had with her, or how much time before departure Ms. Sabbagh arrived at the station.

Ms. Sabbagh

[62] On July 31, 2011, Ms. Sabbagh travelled from the Montréal Central Station. She states that to reach the boarding platform, she was placed in a wheelchair and brought backwards down the escalator by a porter. She alleges that the porter ignored her objections and told her that this was the only way to go to the lower level; otherwise, she would miss the train. Ms. Sabbagh submits that she was not offered the use of the wheelchair stair lift. She describes the experience as “not a comfortable manner to be escorted as my body felt ‘bumped’ along the escalator”.

[63] Additionally, Ms. Sabbagh submits “I also did not like being placed backwards and down the escalator like ‘a piece of baggage’ being handled by porters – I felt belittled and treated with a level of indignity rather than being treated [...] as a human being who should be transported with care and dignity.”

Analysis and findings-Obstacle

[64] The Agency finds that VIA’s policy for providing wheelchair assistance to persons with disabilities to and from the boarding platforms when that entails a change in floor levels at the Montréal Central Station through the use of wheelchair stair lifts represents appropriate accommodation.

[65] However, the Agency finds that VIA’s personnel did not properly apply its policy when it provided boarding assistance to Ms. Sabbagh on July 31, 2011. The Agency therefore finds that VIA’s failure to apply its policy and offer appropriate accommodation to Ms. Sabbagh at the Montréal Central Station constituted an obstacle to her mobility.

Facts, evidence and submissions-Undue obstacle

VIA

[66] VIA submits that it cannot ascertain whether Ms. Sabbagh’s ticket indicated a special service request for wheelchair assistance because her booking has been purged from its system. VIA submits, however, that in the absence of a special service request for wheelchair assistance on Ms. Sabbagh’s ticket, it may be possible that the “red cap” brought Ms. Sabbagh down the escalator in a wheelchair at the Montréal Central Station.

[67] With respect to the wheelchair stair lift at the Montréal Central Station, VIA states that “when there are several persons in wheelchairs who need to board a train(s), the inclined wheelchair lift takes several minutes to go down and come back up to the concourse level. For passengers who wish to board their train more quickly […] the option of the escalator should be made available.”

Analysis and findings-Undue obstacle

[68] Although VIA notes that a situation in which several persons need to use the wheelchair stair lift at the same time could delay their boarding, VIA has provided no evidence that that was the case on the day of Ms. Sabbagh’s travel.

[69] The Agency finds that VIA has not demonstrated that constraints existed on July 31, 2011 that prevented its personnel at the Montréal Central Station from offering Ms. Sabbagh the appropriate accommodation measures in accordance with VIA’s policy. The Agency therefore finds that VIA’s failure to apply its policy for providing wheelchair assistance to persons with disabilities to and from the boarding platform when that entails a change in floor levels at the Montréal Central Station on July 31, 2011 constituted an undue obstacle to Ms. Sabbagh’s mobility.

THE OTTAWA STATION

Facts, evidence and submissions-Obstacle

VIA

[70] VIA indicates that the Ottawa Station employees are permitted to transport persons in wheelchairs across the tracks to reach the boarding platform. VIA adds that it controls the dispatch of its trains at this station and that the train speed limit is 5 mph.

Ms. Sabbagh

[71] Ms. Sabbagh states that on October 5, 2012, when she travelled from the Ottawa Station, she requested wheelchair assistance and an escort to cross the tracks if the train were to board from the south boarding platform. Ms. Sabbagh submits that the station attendant advised her to sit at the designated waiting area until someone came to help her board the train.

[72] Ms. Sabbagh further submits that when she approached the attendant again after seeing passengers going down the escalator to board the train, the attendant called for someone to help her down the escalator. Ms. Sabbagh states that she again advised the attendant of her need to cross the track in her wheelchair as she could not use the escalator.

Analysis and findings-Obstacle

[73] The Agency finds that VIA’s policy for providing wheelchair assistance to persons with disabilities to and from the south boarding platform when that entails a change in floor levels at the Ottawa Station through the use of its ground-level crossing represents appropriate accommodation.

[74] However, the Agency finds that VIA’s personnel did not properly apply its policy when it provided boarding assistance to Ms. Sabbagh on October 5, 2012. The Agency therefore finds that VIA’s failure to apply its policy and offer appropriate accommodation at the Ottawa Station constituted an obstacle to Ms. Sabbagh’s mobility.

Facts, evidence and submissions-Undue obstacle

VIA

[75] VIA submits that on October 5, 2012, which was the Friday before Thanksgiving, there was a high volume of passengers and train arrivals and departures at the Ottawa Station. VIA notes that Ms. Sabbagh’s train and another train arrived almost at the same time with particularly heavy traffic loads. VIA adds that there was a very “short stand time” for these trains and that boarding was delayed.

Analysis and findings-Undue obstacle

[76] Although VIA mentions the high volume of trains and passengers at the Ottawa Station on October 5, 2012, it has not established how this constrained its ability to provide wheelchair assistance to Ms. Sabbagh by using the ground-level crossing to reach the south boarding platform.

[77] As such, the Agency finds that VIA has not demonstrated that constraints existed on that day that prevented its personnel at the Ottawa Station from offering Ms. Sabbagh the appropriate accommodation measures in accordance with its policy. The Agency therefore finds that VIA’s failure to apply its policy for providing wheelchair assistance to persons with disabilities to and from the boarding platform when that entails a change in floor levels at the Ottawa Station on October 5, 2012 constituted an undue obstacle to Ms. Sabbagh’s mobility.

THE DORVAL STATION

Facts, evidence and submissions-Obstacle

VIA

[78] VIA indicates that two tracks serve the Dorval Station: the south track boarding platform is accessible to persons using wheelchairs, while the north track boarding platform is not. Passengers boarding or disembarking from the boarding platform for the north track reach the station via a tunnel, which has staircases consisting of 22 stairs at both ends of the tunnel.

[79] VIA notes that CN controls the dispatch of VIA’s trains on the tracks at the Dorval Station, which are under the control and supervision of CN’s Railway Traffic Control Centre. Although VIA can request CN to have the train placed on the south track to accommodate a person who has limited mobility and cannot use stairs, when this is not possible, VIA’s policy is to offer assistance down the stairs and through the tunnel, if the customer wishes. VIA states that, if the person is unable to use the stairs, VIA offers the passenger alternative travel arrangements to depart from the Montréal Central Station or the option of taking the next train that will board from the south track.

Ms. Sabbagh

[80] Ms. Sabbagh submits that in order to reach the north boarding platform at the Dorval Station, she was required to go down a flight of stairs, walk across a tunnel, and climb up another flight of stairs, which she found to be an unrealistic and difficult task.

[81] During a second incident at the Dorval Station, Ms. Sabbagh requested accommodation for accessing the north boarding platform. Ms. Sabbagh submits that “the female porter simply responded that [...] if the train was on the other track of the station, there was nothing they could do for me because they could not bring any passengers across the tracks.”

Analysis and finding-Obstacle

[82] When the train boards from the north boarding platform at the Dorval Station, VIA’s policy for accommodating persons with disabilities who cannot use the stairs is limited to providing the option to travel from another station or on another train. The Agency has found that these measures do not provide appropriate accommodation.

[83] The Agency therefore finds that VIA’s policy for providing wheelchair assistance to and from the boarding platform of the Dorval Station’s north track constitutes an obstacle to the mobility of persons with disabilities, including Ms. Sabbagh, who require such assistance.

Facts, evidence and submissions-Undue obstacle

VIA

[84] VIA notes that prior to 2011, its policy at the Dorval Station was to permit persons in wheelchairs to be transported across the tracks to reach the north boarding platform. However, it explains that CN informed VIA that this procedure would no longer be authorized due to the continuous traffic during VIA’s hours of operation and the high risk of bodily injury or death. VIA points out that the train speed limit on these tracks is 40 mph. VIA carried out its own hazard and risk study and concluded that the practice of permitting passengers to use the crosswalk over the tracks presented an intolerable risk for passengers.

Analysis and findings-Undue obstacle

[85] The Agency notes that VIA carefully considered the feasibility of the practice that permitted persons who use wheelchairs to be wheeled across the tracks as a means of accommodating their needs by conducting a hazard and risk study. The Agency accepts that the practice created too high a level of risk for persons with disabilities using wheelchairs. Additionally, a ground-level crossing is operationally impossible because it is not permitted by CN, the owner of the tracks.

[86] The Agency therefore finds that VIA has demonstrated that it would experience undue hardship were it to permit persons using wheelchairs to cross the tracks at the Dorval Station to reach the north boarding platform. However, VIA has not addressed whether the provision of any of the other forms of appropriate accommodation at the Dorval Station, i.e., wheelchair stair lift, or elevators or ramps that are intended for use by passengers, would create undue hardship on VIA.

[87] The Agency therefore finds, on a preliminary basis, that VIA’s policy for accommodating persons with disabilities using wheelchairs to and from the north boarding platform at the Dorval Station constitutes an undue obstacle to the mobility of such persons, including Ms. Sabbagh.

CONCLUSION

[88] The Agency finds that VIA’s policies for providing wheelchair assistance to persons with disabilities, including Ms. Sabbagh, to and from the boarding platform when that entails a change in floor levels at the Montréal Central Station and the Ottawa Station represent appropriate accommodation for such persons.

[89] The Agency finds that VIA’s failure to implement its policy for providing wheelchair assistance to persons with disabilities to and from the boarding platform when that entails a change in floor levels at the Montréal Central Station on July 31, 2011 and at the Ottawa Station on October 5, 2012 constituted an undue obstacle to Ms. Sabbagh’s mobility.

[90] The Agency further finds, on a preliminary basis, that VIA’s policy for providing wheelchair assistance to persons with disabilities, including Ms. Sabbagh, to and from the boarding platform when that entails a change in floor levels at the Dorval Station constitutes an undue obstacle to the mobility of such persons.

ORDER

[91] In light of the above undue obstacle findings, VIA is required to implement the following corrective measures by June 10, 2013:

1. VIA must ensure that its personnel provide appropriate accommodation (i.e., a wheelchair stair lift; ground-level crossing when safe; or elevators or ramps that are available to the public) to persons with disabilities who require wheelchair assistance to and from the boarding platform when that entails a change in floor levels at the Montréal Central Station and at the Ottawa Station and file with the Agency a copy of the bulletin issued to its personnel to remind them to do so.
2. VIA must implement and file with the Agency a policy that addresses the following situation:

• When VIA is unable to offer any of the forms of the aforementioned appropriate accommodation due to undue hardship (e.g., unforeseen mechanical failure or operational constraints) and when more than one form of reasonable (next best) accommodation is available, VIA must inform the person with a disability of all available options and allow them to choose their preferred means of accommodation.

3.  When an escalator is the form of reasonable accommodation that will be offered, VIA must offer another reasonable accommodation, such as alternate transportation from another station or service ramps or elevators.

DIRECTION TO SHOW CAUSE

[92] The Agency has made a preliminary finding that VIA’s policy for accommodating persons with disabilities using wheelchairs to and from the north track boarding platform at the Dorval Station constitutes an undue obstacle to the mobility of such persons, including Ms. Sabbagh. As such, VIA is provided with an opportunity to show cause, by June 10, 2013, why the Agency should not finalize its determination and so order VIA to implement any of the other three appropriate accommodation measures.

[93] Ms. Sabbagh will then have 15 days to file her reply. Should VIA wish to respond at that point, it will have 15 days to do so. Parties are required to provide a copy of their submissions to the other party at the same time as they are filed with the Agency.