Decision No. 312-AT-R-2013

INTRODUCTION

[1] In Decision No. 178-AT-R-2013 (Show Cause Decision), the Canadian Transportation Agency (Agency) addressed an application by Nelly Sabbagh 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;
• the Ottawa Station; and,
• the Dorval Station.

THE LAW

[2] 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.

BACKGROUND

[3] In the Show Cause Decision, the Agency made the following final determination regarding 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.

[...]

[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.

The Montréal Central and Ottawa Stations

[4] In the Show Cause Decision, the Agency concluded 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. However, the Agency found that VIA’s failure to implement its policy constituted an undue obstacle to Ms. Sabbagh’s mobility and ordered VIA to implement corrective measures.

The Dorval Station

[5] The Agency also found in the Show Cause Decision that VIA had demonstrated that it would experience undue hardship if it were required to permit persons using wheelchairs to cross the tracks at the Dorval Station to reach the north boarding platform. However, VIA had 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. As such, the Agency also made a preliminary finding 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.

[6] The Agency provided VIA with an opportunity to show cause why the Agency should not finalize its determination and so order VIA to implement, at the Dorval station, any of the other three appropriate accommodation measures. Ms. Sabbagh was also provided with an opportunity to comment on VIA’s response to the Show Cause Decision.

[7] In this Decision, the Agency will consider VIA’s response to the Show Cause Decision and Ms. Sabbagh’s comments, finalize its preliminary finding, and determine whether or not it should order VIA to implement one of the remaining appropriate accommodations (i.e. wheelchair stair lift, or elevator or ramp intended for use by passengers).

PRELIMINARY MATTER

[8] As part of her submission in reply to VIA’s response to the Show Cause Decision, Ms. Sabbagh provided comments regarding the Agency’s determination of the appropriate accommodation and the scope of the order for the corrective measures in respect of the Montréal Central station and the Ottawa station.

[9] The Agency considered pleadings by Ms. Sabbagh and VIA in making its final determination as it relates to the appropriate accommodation and the order for corrective measures. Further submissions by Ms. Sabbagh in respect of these already determined matters are not required and will not be entertained. Accordingly, the Agency will not consider Ms. Sabbagh’s additional comments in this Decision.

PRELIMINARY FINDING – DOES 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 CONSTITUTE AN UNDUE OBSTACLE TO THE MOBILITY OF SUCH PERSONS?

The Agency’s approach to determining whether an obstacle is undue

[10] 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.

[11] 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.

[12] 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.

[13] 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).

[14] 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.

THIS CASE

[15] The Agency will now examine whether VIA has demonstrated that it would face undue hardship if it implemented any of the remaining appropriate accommodation measures (i.e., ramps or elevators available to the public, and wheelchair stair lifts).

[16] The Agency will also consider the use of the south track at the Dorval Station pursuant to a new agreement with the Canadian National Railway Company (CN), which VIA proposes as an alternative to the foregoing appropriate accommodation measures.

1. Wheelchair stair lifts

Facts, evidence and submissions

[17] VIA states that the Dorval station will be moved from its present location and submits that it is currently collaborating with Transports Québec, the Montréal Airport Authority and the Agence Métropolitaine de Transport for the creation of a new multimodal facility at the Montréal Pierre Elliot Trudeau International Airport.

[18] VIA further states that during the spring of 2013, Transports Québec informed VIA that they are currently focusing on the “road project” and that the “rail” element of the project is expected to be reactivated in 2014. VIA states that extensive modifications to the current road and rail infrastructure over which it operates its trains at the Dorval Station will be undertaken, including the demolition and replacement of existing railway bridges and the demolition of the current Dorval Station. VIA advises that the new station is being designed to be fully accessible, in particular through the integration of public elevators to cross the tracks, if necessary. VIA states that the new station will not have tunnels nor use wheelchair lifts.

[19] VIA advises that two wheelchair stair lift units would have to be installed at the Dorval station and that the project budget, estimated at approximately $250,000, would include electrical upgrading, signaling and architectural modifications as well as professional fees. VIA filed a copy of a development plan for the installation of the stair lifts. VIA indicates that the installation would not be completed until May 2014.

[20] VIA submits that it would be forced to unnecessarily absorb new capital costs for the installation of these two wheelchair lifts and incur additional operating costs for maintenance which cannot be recovered over time due to the demolition of the Dorval station.

[21] VIA argues that the Agency should not finalize its determination and order VIA to implement any of the “other three appropriate accommodation measures” on the basis that any expenditure relating to these measures will create a facility that is scheduled to be demolished. VIA asserts that the demolition and relocation of the Dorval station and an expenditure for a facility to be demolished make the removal of the obstacle unreasonable, impracticable or impossible and therefore constitutes an undue hardship for VIA.

[22] Ms. Sabbagh agrees with VIA that pending the relocation of the Dorval station, the installation of wheelchair stair lifts would prove to be an unnecessary expense. However, Ms. Sabbagh sets out her expectations that VIA would have to ensure that persons using wheelchairs would be able to board the train from the south track at all times.

Analysis and findings

[23] In determining whether the costs of accommodation would result in undue hardship, the Agency considers the financial evidence provided by a service provider and weighs the social and economic benefits of providing accommodation against the financial costs that a service provider would incur to provide it.

[24] In order for the service provider to meet its burden of proof, it is not sufficient to demonstrate that the accommodation would cost a given amount. The service provider must also show why this amount has a significant impact on its business.

[25] Costs will amount to undue hardship if they are:

• quantifiable;
• incremental (i.e., new costs);
• attributable to meeting the needs of persons with disabilities; and,
• so significant that the impact would be harmful to the service provider to the point that it would be either unreasonable, impracticable or impossible to provide the accommodation.

[26] In assessing the impact of the costs of providing accommodation, consideration is given to how the costs of the accommodation may be managed or offset, such as by:

• recovering costs;
• generating revenue from new demand for travel by persons with disabilities;
• reducing taxes payable in the future; and
• obtaining grants, subsidies or loans, such as those from government and non-government sources.

[27] The cost that remain after all benefits, deductions and other factors have been considered (net cost) is used by the Agency in its analysis of the impact of the costs of providing the accommodation.

[28] Other relevant factors that may be considered when assessing the impact of costs include the impact on the service provider’s ability to:

• generate profit and shareholder value;
• meet its short-term cash payment obligations;
• service debt and meet debt covenants; and
• undertake important capital expenditures.

[29] A service provider must provide reliable evidence to support the calculation of the costs and the impact of those costs on it, such as: current audited and interim financial statements; current cash flow projections and the underlying assumptions; a detailed business plan; annual reports; and other financial information that is supported by its financial records.

[30] While VIA submits that the estimated cost of the project is $250,000, it did not provide any information regarding the nature of the cost (e.g. cost of related structural modifications, actual cost of wheelchair stair lifts, etc.). Furthermore, VIA did not provide any evidence to support the cost, such as a cost estimate from a supplier or an invoice in respect of the purchase and installation of the wheelchair lift at another station such as the Montréal Central station.

[31] VIA also submits that architectural modifications would need to be made in order to install the wheelchair lifts at the Dorval station. However, it did not provide any information on these modifications, nor with respect to the actual wheelchair stair lifts that it would install other than that the manufacturer would be Garaventa Lift. In this regard, the Agency is aware that many manufacturers of wheelchair lifts, possibly including Garaventa Lift, produce different models, some of which are made to be installed with limited structural or architectural modifications.

[32] As noted above, in assessing a cost constraint raised by a service provider, the Agency considers the net cost of an accommodation measure as this is relevant to the impact of the cost on the service provider. In this case, VIA did not indicate whether the estimated cost of $250,000 for the two wheelchair lifts reflects amounts that could be offset against the cost, such as the savings that would result from no longer having to provide alternative transportation to other stations. Additionally, VIA did not indicate whether the wheelchair lifts could, subsequent to the demolition of the Dorval station, be used at another of its stations or possibly sold.

[33] In terms of the impact of the estimated cost of the two wheelchair lifts, VIA did not explain the impact on its current or future financial situation and substantiate this by providing supporting documents such as financial statements, cash flow projections, a business plan, etc. Instead, VIA submits that the cost cannot be recovered over time due to the demolition of the Dorval station.

[34] The duty to accommodate is not to be viewed the same way as a business decision. Although VIA may consider that the acquisition of the two wheelchair lifts does not represent a good business decision given that the Dorval station is to be demolished at a future date, it is apparent that the rail portion of the project will not be completed for a considerable period of time and actual dates for demolition and replacement have not even been established. While the Agency could consider a new station that is fully accessible as another form of appropriate accommodation that is equally responsive, this would only be the case once the station is operational. In the meantime, VIA’s duty to accommodate exists and is not met as there are no appropriate accommodation measures in place at the Dorval station.

[35] In light of the above, the Agency finds that VIA did not submit any evidence to demonstrate that the impact of the cost of installing two wheelchair lifts at the Dorval station would be harmful to the point that it would be unreasonable, impracticable or impossible for VIA to provide the accommodation. Accordingly, the Agency finds that VIA has not demonstrated that it would experience undue hardship if it was required to install wheelchair stair lifts at the Dorval station.

2. Ramps or elevators available to the public

Facts, evidence and submissions

[36] VIA states that the north track at the Dorval station can only be accessed through an underground tunnel and that there are no elevators or ramps available to the public to access the track.

Analysis and findings

[37] VIA submits that ramps or elevators available to the public to access the north track do not already exist. However, VIA did not provide any specific evidence to demonstrate that implementing either of these measures would create undue hardship. Although VIA infers that incurring costs to provide appropriate accommodation at the Dorval station is not justified given that the station is to be demolished and replaced with a fully accessible station, as reflected above, the Agency finds that such a new station could only be considered once it is operational. In the meantime, no appropriate accommodation measures are in place at the Dorval station.

[38] In light of the above, the Agency finds that VIA has not demonstrated that it would experience undue hardship if it were required to install an elevator or ramp available to the public as a means of accommodating 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. Alternative measures

Facts, evidence and submissions

[39] VIA states that it has explored alternative measures and is implementing one in recognition of the need to accommodate the mobility of persons with disabilities, including Ms. Sabbagh.

[40] VIA explains that it negotiated a new agreement with CN, which controls the dispatch of VIA’s trains at the Dorval station, pursuant to which it can request CN to use the south track at the Dorval station. VIA adds that in those instances, CN will make “reasonable efforts” to use the south track.

[41] VIA submits that this contractual undertaking with CN “is a new fact and means that except in rare instances, VIA will be able to request CN to dispatch VIA trains such that they will stop on the south track therefore permitting full access for persons with disabilities.”

[42] VIA submits that the financial burden of installing two wheelchair stair lifts is unjustifiable in the circumstances as there is an operational alternative, which it asserts is equally responsive in meeting the needs of passengers with disabilities. VIA is of the view that the capital investment for two wheelchair stair lifts does not provide any better social or economic benefits than CN’s contractual undertaking and the operational agreement with CN to use the south track.

[43] Ms. Sabbagh expresses the opinion that this alternative must always be available such that trains must always be able to access the south track.

[44] VIA states that if a train cannot be placed on the south track, the following two options would be offered:

1. alternate transportation to a person’s destination (within corridor), and,
2. a different departure time.

Analysis and findings

[45] Although VIA asserts that the operational agreement with CN to use the south track is equally responsive to responding to the needs of persons with disabilities, the Agency has already determined, as reflected in the Show Cause Decision, that the measures needed to meet the needs of persons with disabilities, including Ms. Sabbagh, who require wheelchair assistance to and from the boarding platform when that entails a change in floor levels are as follows:

• 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.

[46] Moreover, in making this determination, the Agency had already considered VIA’s submissions in respect of the use of the south track at the Dorval station. While VIA indicates that CN will use reasonable efforts to have the train placed on the south track when necessary, it has not demonstrated that this alternative measure would, in all cases, remove the undue obstacle, for persons with disabilities using wheelchairs, that exists at the Dorval station. VIA’s proposed alternative solution, while possibly reducing the instances when people using wheelchairs would not be able to board the train, does not guarantee that the train will board at all times from the south track, which means that persons using wheelchairs have no guarantee that they can travel as planned from the Dorval station.

[47] VIA submits that if the train cannot be placed on the south track, it will offer either alternate transportation to another departure station (within the corridor) or a different departure time. In the Show Cause Decision, the Agency found that these two options represented reasonable (next best) accommodation.

[48] VIA has identified the agreement with CN to switch the train to the south track, alternate departure station, and a different departure time (when the train will board from the north track) as proposed reasonable (next best) accommodation measures. However, in order for the Agency to consider a proposed form of reasonable accommodation, VIA must demonstrate that offering any of the remaining appropriate accommodations identified by the Agency (i.e., wheelchair stair lift, or elevator or ramp intended for use by passengers) creates an undue hardship.

[49] In light of the above, the Agency finds that VIA has not demonstrated that it would face undue hardship if it were to provide a form of appropriate accommodation and, as such, the Agency will not consider the new agreement with CN as a reasonable accommodation measure. Nonetheless, given that it will take some time for VIA to implement an appropriate accommodation measure at the Dorval station, the Agency is of the opinion that VIA should implement its new agreement with CN as an interim measure for providing accommodation to Ms. Sabbagh and other persons with disabilities using wheelchairs.

FINAL FINDING AND CONCLUSION

[50] The Agency finds that VIA has not demonstrated that implementing any of the remaining appropriate accommodation measures (i.e., wheelchair stair lifts or ramps or elevators available to the public) would create undue hardship such that it has not shown cause why the Agency should not finalize its determination and order VIA to implement, at the Dorval station, any of the other three appropriate accommodation measures.

[51] The Agency therefore finds, on a final 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.

[52] Additionally, the Agency finds that VIA’s new agreement with CN should be implemented as an interim accommodation measure while VIA implements one of the remaining three appropriate accommodations.

ORDER

[53] In light of the above undue obstacle finding, VIA is required to implement one of the three remaining appropriate accommodation measures at the Dorval station (i.e., wheelchair stair lifts or ramps or elevators available to the public). In the interim, VIA must also implement its new agreement with CN as described above.

[54] Furthermore, as it relates to the implementation of the appropriate accommodation, VIA is required to file, by September 13, 2013 a detailed schedule, with supporting documentation, including contracts/agreements with a supplier and, to the extent applicable, the entity(ies) responsible for their installation.