Decision No. 200-AT-MV-2007

Follow-up - Decision No. 610-AT-MV-2007

April 25, 2007

File No. U3570/06-41

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APPLICATION

[1] On November 22, 2006, Terrance J. Green filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title. On November 23, 2006, Mr. Green filed further information to complete his application. OC Transpo submitted its answer to the application on January 16, 2007 and February 5 and 8, 2007, and Mr. Green filed his reply on January 19 and February 15, 2007. Further submissions were filed by the parties on April 5 and 10, 2007 in light of the March 23, 2007 decision of the Supreme Court of Canada in the matter of the Council of Canadians with Disabilities v. VIA Rail Canada Inc.(2007 SCC 15) [hereinafter the CCD-VIA Decision].

[2] On February 26, 2007, Mr. Green also filed a submission concerning an incident that had occurred the same day. The parties were verbally advised that the February 26, 2007 incident would not be considered by the Agency in its investigation of the case at hand and that should Mr. Green wish, he could file a separate application with respect to this incident for the Agency to consider the matter.

[3] Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an indefinite extension of the deadline.

PRELIMINARY MATTERS

Submissions

[4] Although OC Transpo filed submissions after the prescribed deadlines, the Agency, pursuant to section 5 of the Canadian Transportation Agency General Rules, SOR/2005-35, accepts the submissions as being relevant and necessary to its consideration of this matter.

Compensation

[5] Pursuant to subsection 172(3) of the CTA, the Agency may, on determining that there is an undue obstacle to the mobility of a person with a disability, direct that compensation be paid for any expense incurred by that person arising out of the undue obstacle.

[6] With respect to Mr. Green's claim of compensation for $10,000 to be paid by OC Transpo to a charity of his choice in recognition of the circumvention of his right to information in accordance with the bus company's policies, as this does not fall within the purview of subsection 172(3) of the CTA, the Agency does not have the jurisdiction to award such damages.

[7] Concerning Mr. Green's submission related to lost earnings as a result of the actions of OC Transpo, the Agency is of the opinion that the term "expenses" used in subsection 172(3) of the CTA refers to the expenditure of money or the expenditure of something that diminishes the total assets of a person and cannot be interpreted to mean the value of a person's own labour, the loss of a person's time, or similar damages otherwise recoverable in other forums. Accordingly, the Agency cannot award such lost earnings.

[8] Mr. Green also filed a submission for $5,000 in extraordinary costs for documentation preparation during pleadings. In this regard, Section 25.1 of the CTA reads as follows:

25.1(1) Subject to subsections (2) to (4), the Agency has all the powers that the Federal Court has to award costs in any proceeding before it.

(2) Costs may be fixed in any case at a sum certain or may be taxed.

(3) The Agency may direct by whom and to whom costs are to be paid and by whom they are to be taxed and allowed.

(4) The Agency may make rules specifying a scale under which costs are to be taxed.

[9] The Agency has complete discretion regarding the awarding or denial of costs and each application is decided on its own merits. As a general rule, costs are not awarded as a matter of course and the Agency's practice has been to award these only in special or exceptional circumstances. In making its determination in a given case, the Agency considers a combination of factors such as the nature of the application, the length and complexity of the proceeding, whether parties have acted efficiently and in good faith or if a party has incurred extraordinary costs to prepare and defend its application, etc. The Agency finds that the present case does not meet those special or exceptional circumstances. Consequently, the Agency concludes that Mr. Green's submission for $5,000 in extraordinary costs for documentation preparation during pleadings is not warranted.

The CCD-VIA Decision

[10] The Agency notes the recent issuance, on March 23, 2007, by the Supreme Court of Canada of its decision in the CCD-VIA case. The CCD-VIA Decision is the first consideration by that Court of the Agency's jurisdiction under the accessible transportation provisions in Part V of the CTA and it provides significant direction to the Agency in the execution of this mandate. The Agency is presently assessing the implications of the CCD-VIA Decision and may make changes to its process in the future as a consequence of this review. In this case, the Agency notes that as a result of the impending expiry of Member Gill's term, it is critical that this case be dealt with on an expedited basis. Accordingly, the Agency will issue its decision in Mr. Green's case at this time, prior to this comprehensive review being completed; however, in making this decision to proceed with this case, the Agency has carefully considered the CCD-VIA Decision and finds that the final decision in Mr. Green's case is consistent with the CCD-VIA Decision.

ISSUE

[11] The issue to be addressed is whether OC Transpo operators failed to apply OC Transpo's policies and procedures concerning the calling out of major stops or any other stop requested by a passenger, including those requested by Mr. Green on November 16 and 23, 2006, and if so, whether this constituted an undue obstacle to Mr. Green's mobility as well as to persons who require that a stop be called because of their disability, and if so, what corrective measures should be taken.

FACTS

[12] Mr. Green is blind and uses a cane and a guide dog; he needs assistance from the operator of OC Transpo buses in determining when he has reached his chosen stop.

[13] When Mr. Green travelled on Bus No. 5 on November 16, 2006, he got on the bus at Main Street and disembarked at Albert and Elgin, approximately four streets past his chosen Elgin and Nepean stop.

[14] On November 23, 2006, Mr. Green boarded Bus No. 1 at Billings Bridge and got off at Queen and Kent, approximately five streets from his requested Bank and Nepean stop.

[15] Mr. Green walked back to his chosen stop on both November 16 and 23, 2006.

[16] There were major stops between the points where Mr. Green boarded Bus No. 5 on November 16, 2006 and Bus No. 1 on November 23, 2006 and his chosen stops; there were also major stops between his chosen stops and the points where he disembarked from both buses.

Applicable policies and procedures

[17] OC Transpo provided a list of 13 locations or major stops announced on Bus No. 5 and 12 major stops on Bus No.1 as well as the schedule for these buses. The locations or major stops between the points where Mr. Green boarded Bus No. 5 on November 16, 2006 and Bus No. 1 on November 23, 2006 and his chosen stops (the Elgin and Nepean and Bank and Nepean stops, respectively) are as follows:

• Bus No. 5 Eastbound

  • Elgin - Catherine
  • Elgin - Gladstone
  • Elgin - Somerset
  • Confederation Square

• Bus No. 1 Northbound

  • Bank - Riverside
  • Lansdowne Park
  • Bank - Chamberlain
  • Bank - Gladstone
  • Bank - Somerset

[18] In its submissions dated January 16, 2007 and February 5, 2007, OC Transpo explained its policy on the issue of announcing bus stops as follows:

1. OC Transpo operators do not announce every stop. Rather OC Transpo operators announce only those stops that are deemed to be "major stops", and stops at Transitway Stations. The number of "major stops" varies greatly from route to route.
2. OC Transpo operators will announce a stop when they are requested to do so.

[19] OC Transpo filed its Transit Operations Handbook, revised on January 1, 2003, which was designed as a quick reference guide to help deliver quality transit service to all customers. Section 2 of the handbook, entitled Operator Information, includes the following information:

[20] Subsection 2.1, entitled What's Important, of the handbook provides, in part, that:

To continue to increase ridership...we must meet or exceed our customer's expectations and do it in a financially responsible way. We must:

- Ensure that our #1 goal is courtesy and reliability.

- Provide a safe, smooth and comfortable ride.

...

- Inform customers with stop announcements, service and community information.

...

[21] Subsection 2.2.3, entitled Customer Information and Assistance, of the handbook sets out that:

Operators are expected to:

- answer questions from customers;

- provide information to assist customers to complete their trip;

....

- announce all Transitway Stations, Terminals and the locations listed on the route description and other locations requested by customers and when visibility is limited by weather.

There are many situations in which an operator is expected to provide assistance beyond the norm. An operator may be required to:

- assist a special-needs passenger to obtain priority seating;

- announce the route at the point of boarding, or the requested destination, for a visually impaired customer or a customer with a reading disability;

...

ANALYSIS AND FINDINGS

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

[23] An application under section 172 of the CTA must be filed by a person with a disability or on behalf of a person with a disability. In the case at hand, Mr. Green is blind and uses a cane and a guide dog. As such, Mr. Green is a person with a disability for the purpose of applying the accessibility provisions of the CTA.

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

Jurisdiction

[25] OC Transpo argues that the Agency lacks jurisdiction to consider this application on the basis that the alleged OC Transpo operators' failure to call out major stops and/or those requested by Mr. Green does not impede Mr. Green's "access to OC Transpo buses, nor does it impede his mobility while on board". To support this argument, OC Transpo cites the case of the Federal Court of Appeal Decision in the matter of Via Rail Canada Inc. v. Canada (Canadian Transportation Agency et al.).

[26] OC Transpo adds that the Agency's jurisdiction "is limited to determining whether there are physical characteristics of a transit vehicle that impede a disabled persons's mobility" and that a failure by OC Transpo to call out a stop requested by a blind person did not impede his mobility.

[27] The Agency disagrees with OC Transpo's interpretation of its statutory mandate. The Agency's jurisdiction with respect to persons with disabilities is stated in Part V of the CTA, which is to ensure that persons with disabilities have proper access to effective transportation service. For a person who is blind or visually impaired, proper access to an effective transportation service will not have been achieved without proper communication of the requested and/or needed information in order for the passenger to reach his or her destination as planned [emphasis added]. This interpretation of the Agency's mandate is in keeping with the Agency's power to regulate the "communication of information for persons with disabilities" pursuant to section 170 of the CTA.

[28] In interpreting its mandate, the Agency has applied human rights principles and recognized that persons with disabilities face many kinds of barriers. In the context of the federal transportation network, such barriers may be physical, attitudinal, systemic in nature, etc. They may result from a rule or policy, including the failure to apply a policy intended to accommodate persons with disabilities.

[29] In the CCD-VIA Decision, the Supreme Court of Canada had the opportunity to address the Agency's jurisdiction and confirmed the Agency's interpretation of its mandate. On this point, the Court was unanimous that the Agency should be guided by human rights principles. Justice Abella writing for the majority held that:

110 To redress discriminatory exclusions, human rights law favours approaches that encourage, rather than fetter, independence and access. This means an approach that, to the extent structurally, economically and otherwise reasonably possible, seeks to minimize or eliminate the disadvantages created by disabilities. It is a concept known as reasonable accommodation.

...

112 Part V of the Canada Transportation Act was enacted to confirm the protection of the human rights of persons with disabilities in the federal transportation context. The history of this regulatory scheme shows that it was Parliament's intention that what is now Part V of the Act be interpreted according to human rights principles and that "transportation legislation rather than human rights legislation should be used" to enforce the accessibility standards provided in the predecessor legislation, the National Transportation Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.) [House of Commons Debates, vol. VI, 2nd Sess., 33rd Parl., June 17, 1987, at p. 7273 (Hon. John C. Crosbie)].

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

[30] The word "obstacle" is usually understood to mean something that impedes progress or achievement. As the word obstacle is not defined in the CTA, it must be read in its immediate legislative context which is, for the purposes of Part V of the CTA, the mobility of persons with disabilities, mobility being achieved by having proper access to federal transportation services. In this way, the obstacle must be directly related to a person's disability such that an issue cannot be considered to be an obstacle simply because it is experienced by a person with a disability.

[31] In determining whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency looks to the travel experience of that person as expressed in the application. There is a broad range of circumstances where the Agency has found obstacles where the person was prevented from travelling, where the person was injured in the course of his or her travels (such as where the lack of appropriate accommodation during travel affects the physical condition of the passenger), or where the person was deprived of his or her mobility aid after the trip as a result of damage caused to the aid while it was being transported. Also, the Agency may find obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience call into question whether the person had proper access to effective transportation services.

The case at hand

[32] Mr. Green attempted to ensure that the OC Transpo operators would call out major stops as well as his requested stops, the Elgin and Nepean stop on Bus No. 5 on November 16 and the Bank and Nepean stop on Bus No. 1 on November 23, by requesting this service when boarding the buses with his guide dog. The Agency notes that nonetheless, Mr. Green had to get off the buses past his chosen stops and walk back to them on both occasions. The parties disagree, however, whether the stops were called on the dates in question.

[33] According to Mr. Green, the operators did not call his requested stops, nor the major stops, which he notes would have assisted him in determining where he was on the routes. While OC Transpo submits that the stops that were requested by Mr. Green on November 16 and 23 are not major stops nor are they Transitway Stations, the first part of its policy is not engaged, i.e., announcements of major stops and stops at Transitway Stations, the Agency finds that it is an inescapable conclusion that OC Transpo's policy of announcing bus stops is engaged in its entirety as both aspects of it (i.e., calling out major stops as well as requested stops) are alleged to have caused an undue obstacle to Mr. Green's mobility.

[34] With respect to the second part of its policy, (i.e., calling out requested stops), OC Transpo explains that it interviewed the operators involved in the events of November 16 and 23 and although the result of OC Transpo's interviews shows that neither operator recalls the incidents of November 16 and 23, OC Transpo claims that the two operators in question did not fail to announce the requested stops. The Agency will now consider the supporting evidence and information filed by the parties in this regard.

Calling out a requested stop and/or major stops

November 16, 2006 incident

[35] Mr. Green provided specific details surrounding the above-noted incident. Mr. Green indicates that upon boarding the bus, he asked the operator to call out stops and specifically the Nepean Street stop. He states that when an acquaintance announced that she was getting off at the Somerset stop, he realized that he was close to his chosen destination as it was only two stops away. After a while, as no stops were being called, he spoke to the operator, who informed him that he got busy and forgot to call his stop. As Mr. Green was approaching Albert Street, approximately four streets away from his chosen stop, he asked to be let off as he had a "bit of a walk back in the rain" and, although the operator initially refused Mr. Green's request, the operator subsequently opened the door after Mr. Green complained about the application of OC Transpo's policy and pointed out that the operator should have at least called out his requested stop.

[36] OC Transpo states that the operator asserted that he always calls out a stop when requested and he is especially sensitive to the needs of customers as he was previously a Para Transpo bus operator. OC Transpo suggests that Mr. Green may not have heard the stop when it was announced as Mr. Green stated that there was "considerable background noise caused by rain as well as the other passengers talking".

[37] Mr. Green submits that although other passengers on the bus were talking, he notes that each of the buses is equipped with public address systems and that some are equipped with "boom mikes" so the operator only needs to speak and his or her voice is announced throughout the bus. Mr. Green submits that it would have been very easy to hear even over the noise of people talking, if the operator did make any announcements.

[38] The Agency finds that Mr. Green's evidence established the probability or, at least a sufficient degree of probability, that his requested stop was not called. On the one hand, the evidence presented by Mr. Green is coherent and plausible and consistent with any reasonable analysis of the facts. On the other hand, OC Transpo states that its operator does not recall the incident.

[39] The Agency also has difficulty accepting OC Transpo's submission that the operator called the stop but that Mr. Green may not have heard it when it was announced. It is an inference of common sense that Mr. Green would have been attentive to any announcement especially when he noted that he was getting close to his chosen destination. It is also common sense that if an operator is asked by a person who is blind to call a specific stop, subsequently calls the stop but does not obtain a response from that person to the announcement, this should be sufficient to alert the operator that something further needs to be done.

[40] Therefore, on balance, the Agency accepts Mr. Green's evidence over that provided by OC Transpo and finds that the operator did not call the stop requested by Mr. Green on November 16 or any major stop between the points where Mr. Green boarded and disembarked from the bus.

November 23, 2006 incident

[41] The Agency notes that on the one hand, the operator stated that, although he does not recall the incident, he would have remembered it if it had occurred. Mr. Green, on the other hand, provided specific details. He states that, in requesting that stops be announced upon boarding the bus, the operator indicated that he remembered that he gets off at the Nepean stop, which is consistent with OC's submission that the operator is familiar with Mr. Green as he boards his bus on a semi-regular basis and usually gets off at the Bank and Nepean stop and that the operator is sensitive to the needs of customers with visual impairments.

[42] Mr. Green recalls that as the operator was not calling out stops en route, he asked another passenger where they were, at which point the bus unexpectedly turned, which caused him to go to the front of the bus. Mr. Green submits that the operator indicated that he forgot his stop because he got busy. Mr. Green states that he questioned their location and the operator told him that they were approaching Queen Street on Kent Street as he had to make a detour. Mr. Green therefore asked to be let off in order that he could walk back.

[43] As with the previous incident and for similar reasons, the Agency accepts Mr. Green's evidence over that provided by OC Transpo. It runs contrary to common sense that Mr. Green would have ignored the operator's announcement and disembarked several streets past his chosen destination. Moreover, in this specific incident, the operator stated during the OC Transpo interview that he is familiar with Mr. Green as he boards his bus on a semi-regular basis and usually gets off at the Bank and Nepean stop and that he is sensitive to the needs of persons with visual impairments. The Agency questions why, if the operator had indeed called the stop as suggested by OC Transpo, he would not have noticed that Mr. Green had not disembarked as expected or at least had concerns in this regard.

[44] The Agency therefore accepts Mr. Green's version that the operator forgot to call his stop because he got busy and finds that the operator did not call the stop requested by Mr. Green on November 23 or any major stop between the points where Mr. Green boarded and disembarked from the bus.

[45] As a result of the major stops and Mr. Green's requested stops not being called out, Mr. Green had to walk back to his chosen stops on November16 and 23. While the Agency recognizes that the same rain-related difficulties would have existed had Mr. Green disembarked at his requested stop in the first instance, the fact that the operator failed to ensure that Mr. Green heard the announcement resulted in Mr. Green being exposed to the rain-related difficulties over a greater distance as he was faced with a longer walk to reach his office; on November 23, Mr. Green's guide dog was attacked by another dog and there were deep holes in the street around a construction zone and barricades on his walk back to reach this destination, which had safety implications for him. This could have been avoided had Mr. Green walked from his requested stop to his office. Furthermore, as Mr. Green arrived at his office at approximately 9:25 a.m. on November 23, his 9:00 a.m. appointment had already left and, as such, this incident cost him billable time which he submits he will not be able to recuperate.

Systemic issue

[46] On the one hand, OC Transpo states that the incidents of November 16 and 23, 2006, if true, are not of such significance so as to reasonably support a finding that OC Transpo's entire transportation network is inaccessible for persons who are blind. On the other hand, Mr. Green asserts that the incidents are far from being isolated and are experienced frequently by persons with disabilities.

[47] In situations of opposing positions, it is the responsibility of the applicant to provide sufficient evidence to support his or her claim, thereby outweighing the evidence of the respondent; otherwise the applicant fails to meet his or her burden of proof. In meeting this test, consideration is given to the general credibility of the applicant and whether his or her evidence runs counter to common sense. Factors such as the consistency of the evidence, the circumstances of the alleged incidents, and whether the person observed the incidents are also considered.

[48] In support of his statements that the impugned conduct is a recurring event, Mr. Green refers to his own experience as well as the experience of others as described in correspondence and media articles he has produced which demonstrate that incidents of operators not calling out requested stops occur on a regular basis and that most operators do not call out major stops at all. Mr. Green states that he has e-mails spanning the past four years which provide evidence to support his position that operators do not call out stops; he has been meeting with OC Transpo representatives from the junior to the most senior levels in this regard; he has, at OC Transpo's request, held focus groups regarding the substance of his complaint; and for the past eight years, he has been attempting to work with OC Transpo and City of Ottawa officials to resolve the substance of his complaint.

[49] More specifically, Mr. Green filed a statement from a person who is blind who submits that operators do not call out major stops but they will normally call out stops he requests, but it is not always the case; and that they seldom use the public address system, making it difficult on low-floor buses to hear the operator who is looking forward while calling out specific stops given the ambient noise on board the bus.

[50] Further, Mr. Green provided electronic testimonials during pleadings, where other persons who are blind have reported OC Transpo operators not calling out major and requested stops; a November 15, 2006 letter to the Ottawa Citizen from an individual who advised that stops were rarely called out when he travelled on Bus Nos. 85, 86 and 97 from October 24 to November 15, 2006 and that an OC Transpo representative had explained that stops are never called out; and, his own statement that a Senior Manager at OC Transpo (whom he named) had admitted to him at a January 8, 2007 meeting that "OC Transpo management were well aware that operators do not call out major stops and that calling out specifically requested stops was a recognized problem" which she had herself witnessed as a transit user.

[51] The Agency finds that Mr. Green has met his burden of proof and has demonstrated that the November 16 and 23 incidents are not anomalies nor isolated incidents and that the failure to call out stops appears to be a systemic problem on OC Transpo buses.

[52] The Agency agrees with Mr. Green that for persons who are blind, the ability to know where they are going is a crucial element of transportation, and that not having this assurance causes them a great deal of undue stress, considerably more than to transit users who do not rely on the operator to know where they are on the route. Mr. Green also refers to persons who are blind being inconvenienced when operators fail to call out requested stops, which also causes considerable stress.

[53] The Agency therefore finds that OC Transpo operators failed to apply on a regular basis OC Transpo's policies and procedures concerning the calling out of major stops or any other stop requested by a passenger, including those requested by Mr. Green on November 16 and 23, 2006, and that this constituted an obstacle to Mr. Green's mobility as well as to persons who require that a stop be called because of their disability.

Whether the obstacle was undue

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

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

The case at hand

[56] The Agency must now determine whether the obstacle was undue.

[57] The Agency is of the opinion that the accessibility of the transportation network means that each phase of the transportation cycle is accessible and allows a person with a disability to travel between point A and point B in a public transportation mode without encountering undue obstacles. The exchange of clear and accurate accessibility-related information on the day of travel and receipt of an appropriate level of assistance and accommodation where needed while travelling are important elements that are central to the transportation experience for persons with disabilities and integral parts of the federal transportation network. Mr. Green submits that failure to follow the policy in question creates an information gap that places persons who are blind in an unsafe transportation environment.

[58] The Agency accepts that Mr. Green did everything that he could to ensure that he would be accommodated by receiving the information that he required to reach his destination. Mr. Green requested that the OC Transpo operators call out major stops on November 16 and 23 when boarding the bus with his guide dog, and then advised the operators of his chosen stop. Despite these efforts, there was a breakdown in the transportation cycle as the operators did not apply OC Transpo's policy of calling out major and requested stops and Mr. Green had to get off the bus past his chosen stops and walk back a greater distance to reach his destination, which he found dangerous and difficult. Mr. Green was also stressed when he missed an appointment with his client. Furthermore, there is evidence that this breakdown in the transportation cycle occurs on a regular basis on OC Transpo buses.

[59] The Agency agrees with Mr. Green's view that accommodation is vital to the transportation of persons with disabilities and that without this accommodation these travellers are prevented from doing the same things as persons who do not have a disability, albeit in different ways. Mr. Green further states that without accommodation, persons with disabilities would not have equal access to services, i.e., transportation, employment and participation in mainstream society; in addition, they would face exclusion and segregation. Accommodation, Mr. Green explains, has the effect of "levelling the playing field" for persons with disabilities.

[60] The Agency also agrees with Mr. Green's view that access to information, like announcing upcoming stops, is an essential element of public transportation services, including those provided by OC Transpo. The Agency notes Mr. Green's submission that public transportation service providers are obligated to ensure that passengers know when they arrive at their destinations and the calling out of stops is simply an accommodation measure to ensure that passengers who are blind have the same access to information as other passengers, which cannot be considered an undue hardship on the public transportation service provider.

[61] Further, the Agency notes Mr. Green's assertion that the failure by operators to call out major or requested stops causes undue obstacles and creates potential hazards for persons who are blind travelling on the OC Transpo network; his comments that persons who are blind such as himself question their safety when using OC Transpo buses, as persons who are blind are sometimes left "off the bus in the middle of the road rather than at their requested stops"; and his statement that he is aware of persons who hire a driver or a taxi "solely as a result of the stress when using OC Transpo", thereby causing him to question the efficiency of the transportation service.

[62] The Agency is of the opinion that for a level of accommodation in the transportation network to be effective, it must ensure that persons who are blind are provided a similar access to information as other travellers to assist them in determining when they have reached their destination, and it must meet a basic standard of safety, such that the person is not exposed to unreasonable risk of injury and the person is provided with certainty that his or her needs will be reasonably met when requested. Persons with disabilities should be able to travel to their destination safely as intended and be aware of their location en route, in the same way as other travellers. The consistent calling out of major and requested stops allows persons with disabilities who require this accommodation to travel more independently, without having to request this information of other passengers or make further inquiries of the operator as to their location.

[63] The Agency finds that the level of accommodation on OC Transpo's transportation service is ineffective as major or requested stops are consistently not announced with the result that persons who are blind are not assured that they will reach their destination without incident or stress when travelling.

[64] OC Transpo indicates that it has developed the following initiatives to ensure that operators adhere to OC Transpo's policies:

• new recruits are trained on accessibility issues;
• operators must take refresher courses, which deal in part with accessibility;
• at regular intervals, OC Transpo holds campaigns and Cyclical Training Sessions where operators are reminded of the importance of making public announcements; and
• OC Transpo has an Employee Management System and conducts internal investigations to ascertain "the legitimacy of Failure to Stop complaints". Operators are disciplined progressively where warranted.

[65] According to Mr. Green, operators are reminded, at the bottom of route sheets, to call out major stops. Mr. Green further notes that OC Transpo informed him at a January 8, 2007 meeting with its officials that it included the failure to call out stops on its "operator infraction list" at the end of 2006, after Mr. Green filed his application with the Agency. Although Mr. Green thinks that the latter was a good step, he also believes that it will unlikely result in any marked change in service unless personnel, such as Fare Inspectors who are on the buses regularly, can cite infractions.

[66] Moreover, OC Transpo explains that it is planning to introduce a Global Positioning System (hereinafter GPS) on OC Transpo buses in 2008 which will automate the announcing of major stops. OC Transpo adds that this option has already been successfully implemented on its Light Rail System (hereinafter LRS), and this option will complement the policy of announcing non-"major stops" that are requested to be announced. Mr. Green states, however, that he has been on the LRS when the GPS was turned off and also when the GPS was calling out incorrect stops.

[67] Notwithstanding OC Transpo's long-standing policy and the foregoing initiatives, the Agency notes that OC Transpo has provided no operational reasons as to why major and requested stops are still not consistently called as reported in the case at hand.

[68] Further, the Agency notes that although OC Transpo has explained that its policy requires bus operators to announce certain stops, its Transit Operations Handbook contains different information in this regard. While subsection 2.1, What's Important, sets out that "we must inform customers with stop announcements", this service is not similarly identified as a requirement in subsection 2.2.3, Customer Information and Assistance. Rather, OC Transpo sets out a list of services operators are expected to provide, which includes the following [emphasis added]:

• providing information to assist customers to complete their trip; and
• announcing all Transitway Stations, Terminals and the locations listed on the route description and other locations requested by customers and when visibility is limited by weather.

[69] The list of services is followed by a statement that there are many situations in which an operator is expected to provide assistance beyond the norm; for example, an operator may be required to announce the route at the point of boarding or the requested destination, for a "visually impaired" customer or a customer with a reading disability [emphasis added].

[70] The Agency is concerned that these distinctions as to what is required and what is expected may cause some confusion concerning the nature of announcements that must be made by operators and may contribute to an inconsistent application of OC Transpo's policy. The Agency is of the opinion that the Transit Operations Handbook needs to be more explicit about the requirement to call out stops.

[71] It is obvious to the Agency that problems exist, that these are broad in nature, and that OC Transpo policies and initiatives in place fail to meet the level of accommodation needed by persons who are blind or visually impaired, resulting in a serious impediment to the mobility of persons who are blind or visually impaired and reducing their confidence to travel safely and with certainty on OC Transpo buses.

[72] For persons with disabilities to be certain that the services requested will be provided safely and in a predictable manner, policies and procedures must be consistently applied, thereby ensuring their integrity and facilitating the accommodation required to access transportation. To ensure the consistency in the calling of major and requested stops, the Agency finds that policies and related documentation should clearly reflect that stops must always be called. The Agency also finds that the training initiatives described by OC Transpo do not specifically address the requirement that operators should always call out major and requested stops on OC Transpo buses. The Agency is of the opinion that OC Transpo's training program should clearly reflect that major or requested stops must always be called and that operators should be made aware of this policy. In addition, the Agency is of the opinion that the regular use of inspectors or other personnel on OC Transpo buses to monitor compliance with the company's policy and follow-up on reports of infractions with the operators are required in order to effectively ensure that major and requested stops are called out.

[73] Further, the Agency finds that it is crucial that the calling out of major and requested stops be heard and understood clearly by persons who are blind. In this regard, although Mr. Green has noted in pleadings that he is not necessarily confident that the use of technology, such as GPS, would solve the problem of operators not always calling stops, the Agency is of the opinion that technology would assist in conveying this information to transit users. For this reason, consistent use of a public address system on buses where available, and a GPS that is always activated once installed on OC Transpo buses and that correctly announces major stops, in combination with operator or GPS announcements of requested stops, are viewed by the Agency as effective tools to facilitate the communication of stops on OC Transpo buses.

[74] The Agency also encourages OC Transpo to ensure that in cases where a public address system or GPS is not used, an alternative is available so that operator announcements are clearly heard.

CONCLUSION

[75] In light of the foregoing, the Agency finds that OC Transpo operators failed to apply OC Transpo's policies and procedures concerning calling out major stops or any other stop requested by a passenger, including those requested by Mr. Green on November 16 and 23, 2006, and that this constituted an undue obstacle to Mr. Green's mobility as well as an undue obstacle to the mobility of other persons who require that a stop be called because of their disability.

Direction to show cause

[76] Based on the above findings, the Agency is hereby providing OC Transpo with the opportunity, by way of a direction to show cause, to provide reasons why OC Transpo should not be required to implement the following corrective measures within ninety (90) days from the date of any final decision by the Agency:

• To ensure the consistent application of its policy:

  • Modify its Transit Operation Handbook to clearly state that major and requested stops must always be called out.
  • Incorporate into its training program the situation that developed with respect to the difficulties experienced by Mr. Green, without naming him. In particular, the training should emphasize that for passengers with a visual impairment, major stops and those requested must be called out.
  • Monitor compliance with OC Transpo's policy of operators calling out major stops and those requested by passengers with visual impairments through the use of inspectors or other persons on board OC Transpo buses and follow-up on reports of infractions with the operators.

• To ensure that announcements are clearly heard:

  • Modify its policy to require that its operators consistently use, where available, a public address system to announce major and/or requested stops.
  • Ensure that its Global Positioning System (GPS) is always activated once installed on OC Transpo buses and that it correctly announces major stops, in combination with operator or GPS announcements of requested stops.
  • Modify its policy to specifically set out the alternative means to ensure that operator announcements are clearly heard by the person in cases where a public address system or GPS is not used.

[77] Upon receipt of the required information pursuant to the above-noted direction, the Agency will assess the information and finalize its corrective measures.

Members

• Gilles Dufault
• Guy Delisle
• Baljinder Gill