Decision No. 405-AT-R-2008

August 7, 2008

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

File No. U3570/00-81

Background

[1] In Decision No. 620-AT-R-2003 dated October 29, 2003 (the October Decision), the Canadian Transportation Agency (the Agency) made its final findings concerning issues raised by the Council of Canadian with Disabilities (CCD) with respect to the accessibility of VIA Rail Canada Inc.'s (VIA) Renaissance passenger rail cars. The October Decision followed preliminary Decision No. 175-AT-R-2003 dated March 27, 2003 (the March Decision), wherein the Agency provided VIA with the opportunity to specifically address the preliminary undue obstacles that had been determined by the Agency to exist in the Renaissance cars. The March and October Decisions were set aside and the matter was referred back to the Agency by the Federal Court of Appeal for reconsideration, and subsequently restored by the Supreme Court of Canada.

[2] In the October Decision, the Agency directed VIA to take specific corrective measures and, prior to implementation of the corrective measures by VIA and the Agency's determination of the need for further actions, also required VIA to submit the following:

its plan for the timing of the implementation of the modifications required by the October Decision, including a proposed schedule for the commencement and completion of the modifications; and
the general arrangement plans, with dimensions, for the modifications required to the economy coach cars, the "accessible suite" and the stairs.

Process

[3] VIA first submitted its proposed conceptual plans on May 18, 2007. The Agency reviewed VIA's proposal and required VIA to demonstrate the adequacy of its proposed modifications to the economy coach and sleeper cars.

[4] To assist the Agency in assessing the accessibility of the proposed modifications, it retained an accessibility expert, Uwe Rutenberg; held consultations with CCD; and convened a site inspection in Montréal on November 19, 2007, where VIA presented a mock-up of the accessible areas of the cars, which was also attended by CCD, an expert on universal design, and a representative from MIRA Foundation who uses a wheelchair and a service dog. Reports on the viewing of the mock-up were filed by CCD's representatives and expert, as well as the Agency's expert. VIA subsequently modified its proposal and a site inspection was convened for the Agency's expert. On January 14, 2008, VIA filed a response to the concerns raised, including a redesigned accessible washroom and tie-down area in the economy coach cars (Alternative No. 2). On March 26, 2008, the Agency's expert, along with Agency staff, viewed existing Renaissance equipment and further discussed VIA's proposal, followed by additional exchanges of information for clarifications and VIA's commitments on a number of issues.

[5] On April 14, 2008, VIA filed a further redesigned accessible washroom and tie-down area in the economy coach cars (Alternative No. 3). The modified proposal filed by VIA incorporated a number of changes and enhancements to the original proposal for the economy coach car accessibility. The Agency's expert issued a report on the level of accessibility of the cars on June 12, 2008. Further consultations were held with CCD, following which VIA finalized its proposal.

Section 32 of the Canada Transportation Act (CTA)

[6] VIA submitted its conceptual plans for the modification of the Renaissance cars. VIA is seeking the Agency's preliminary approval of the elements of this proposal before moving to the next stage of the implementation process. VIA's intention is to submit its more detailed plans for approval by September 22, 2009.

[7] VIA also filed a plan for the timing of the implementation of the required modifications, including a proposed schedule for the commencement and completion of these modifications. The schedule sets out that the modifications to the three sleeper cars and nine accessible economy coach cars will begin on February 10, 2010.

[8] VIA indicates that the schedule is based on the scope of work and timing of approvals as known today, changes in either of which would impact the final completion date. VIA states that it will attempt to expedite the process where feasible and practical.

[9] The Agency considered VIA's proposed schedule and finds it reasonable; however, it notes that any changes to the scope of work or the timing of approvals may have an impact on the timing. VIA is required to advise the Agency in advance of any changes to the completion dates.

[10] In Decision No. LET-AT-R-113-2007 dated June 19, 2007, the Agency determined that, based on the conceptual plans filed, corrective measures 4 and 5 appear to have been met by VIA and that no further action was required at that stage of the process.

[11] The corrective measures ordered by the Agency in the October Decision were based on plans and proposals that existed at that time. VIA's current design proposal contains significant changes in that, for example, VIA now proposes:

to provide sleeping accommodation in an accessible suite in the sleeper car instead of in the service car;
alternatives to providing the Option 3 accessible washroom and seating area in the accessible economy coach cars; and
alternatives to the seating to meet the needs of persons with disabilities travelling with service animals.

[12] The Agency finds that a significant change in facts and circumstances has taken place since the issuance of the October Decision that justifies a review of the corrective measures ordered in that Decision under section 32 of the CTA.

Issue

[13] The Agency must determine whether a variance of the order for corrective measures contained in the October Decision is warranted by the new facts or circumstances raised by VIA in its current design proposal. As the Agency indicated in Decision No. LET-AT-R-113-2007 with respect to the "accessible suite" in the service car, it is prepared to vary its order for corrective measures provided that it is satisfied that VIA's current design proposal provides an appropriate level of accommodation for persons with disabilities.

Analysis and findings

1. Sleeper car

a) Accessible suite (VIA's proposed design, as described in this Decision, is shown in Appendix A)

[14] VIA proposes to operate each overnight train consist with one sleeper car that contains a suite that is accessible to Personal Wheelchairs, composed of a sleeper unit and an adjoining washroom. Three Renaissance sleeper cars will be modified by combining two existing bedrooms at one end of the sleeper car to create this accessible suite.

i - Route to the accessible suite (VIA's proposed design, as described in this Decision, is shown in Appendix B)

[15] A person using a Personal Wheelchair will enter the train through one of two 810 mm-wide exterior doors on the service car marshalled adjacent to the accessible end of the sleeper car. The person will travel through a 1300 mm-wide vestibule at this end of the service car, which provides a turning radius of 1500 mm with some overlap with the door opening to the diaphragm between the two cars, and make a 90-degree turn to enter the diaphragm.

[16] The doors at either end of the diaphragm between the cars are 810 mm wide as is the diaphragm through which the person travels to enter the sleeper car. These diaphragm doors are operated by a push-plate switch and are currently equipped with an obstacle detection system that will open the doors if a person or object is detected. VIA proposes to establish new operating procedures, such that when the accessible suite is occupied, the onboard crew will lock these two diaphragm doors in the open position. The doors will also remain in an open position in the event of a power failure.

ii - Accessible suite washroom

[17] A person with a disability will enter into the washroom of the accessible suite through an 810 mm-wide power-operated sliding door. The washroom will be 1550 mm wide and 1677 mm long, excluding the vanity containing the sink, which is positioned along the interior wall that separates the washroom from the sleeper car aisle. The toilet, which will be installed as per CAN/CSA-B651-04 Accessible design for the built environment (CSA B651), will be located against the opposite exterior wall, facing the vanity area and near the wall dividing the washroom from the bedroom. The toilet's location will provide for a space 900 mm wide by 1677 mm long to allow for a right-side transfer from a wheelchair to the toilet.

[18] VIA indicated that the sink will be 680 mm high, as per (CSA B651). In addition, the location and design of washroom accessories, such as the power-operated door controls, grab bars, toilet paper and paper towel holders, soap dispensers, emergency call button, flush controls, faucets, and mirrors, will conform with CSA B651.

iii - Accessible suite bedroom

[19] A person with a disability will enter the bedroom through the accessible washroom. While there is a separate entrance to the sleeping area from the sleeper car aisle into the bedroom, it is not wide enough to accommodate a Personal Wheelchair. VIA has indicated that it can be used by crew to permit evacuation from the suite using the onboard wheelchair should the accessible route be blocked in an emergency.

[20] VIA intends to install a form of curtain or similar soft divider between the washroom and the bedroom, subject to unforeseen issues that may arise in the detailed engineering/design stage. VIA indicates that it will provide this suggestion to the engineers at the detailed design and engineering stage, at which time, the exact design and location will be confirmed.

[21] The sleeper unit will be 1310 mm wide by 2000 mm long (excluding the sofa), within which a turning radius of approximately 1500 mm will be provided.

[22] A sofa seat will be situated along the facing wall upon entering the sleeper unit. There will be two beds: one converted from the sofa seat and the second which will unfold from the wall above the seat. To position a wheelchair to take maximum advantage of the window view space in the sleeping compartment, VIA will strive to convert the existing sofa seat to a flip-up construction, either fully or partially, which will allow for more wheelchair space parallel to the window. Furthermore, the table located near the window will fold up and down to allow for increased manoeuvring space in the bedroom.

[23] VIA indicates that it will install call buttons in the sleeper section, with the exact location and design to be determined following consultation. VIA's proposed design does not include a tie-down in the accessible suite as there is no requirement for a tie-down mechanism in the sleeper section, based on VIA's consultation with Transport Canada.

Findings - sleeper car

[24] The Agency has already expressed in Decision No. LET-AT-R-113-2007 that VIA's proposal to relocate the sleeping accommodation for persons using a Personal Wheelchair to the sleeper car from the service car represented, on its face, an improved level of accessibility. The Agency also addressed, in the March Decision, a portion of the route in VIA's current design proposal. The space in the service car vestibule to make the 90-degree turn into the diaphragm was found by the Agency to not be an obstacle.

[25] CSA B651 specifies that accessible routes, paths, and corridors should be 920 mm in width, but allows a minimum of 810 mm for a short indentation up to 600 mm in length, and door openings should be at least 810 mm in width. The Agency notes that all door openings and aisles in and between the accessible areas of the Renaissance cars are of a minimum of 810 mm in width. The Agency expressed the opinion, in the March Decision, that 810 mm is a reasonable door width for areas in trains which are designed to meet the needs of persons with disabilities, such as the sleeper unit and the washroom in the "accessible suite" on the Renaissance trains. The Agency further found, in the March Decision, that a width of at least 810 mm would provide sufficient space on either side of a Personal Wheelchair to permit a person using a Personal Wheelchair to safely and easily travel down an aisle in the Renaissance Cars.

[26] With respect to the toilet seat height, the Agency continues to recognize the expertise of the Canadian Standards Association for establishing standards for design features and dimensions for amenities and fixtures to ensure that they are accessible to and usable by a wide range of persons with disabilities. CSA B651 sets out that preferences for toilet seat heights vary considerably and that higher seats may be an advantage to some ambulatory persons with disabilities but a disadvantage to persons using wheelchairs. Therefore, the Agency accepts as reasonable the level of accessibility provided by toilet seat heights that range from 400 mm to 460 mm.

[27] Because Transport Canada does not require it, the Agency accepts that VIA will not install a tie-down mechanism in the sleeper section.

[28] The Agency is satisfied that VIA's current proposed design for the accessible suite in the sleeper car, including its commitments to modify the design to improve manoeuvrability and to ensure that fixtures and features will be installed as per CSA B651, will provide an appropriate level of accommodation for persons with disabilities who use Personal Wheelchairs.

2. Economy coach cars (VIA's proposed design, as described in this Decision, is shown in Appendix C)

[29] VIA will modify nine economy coach cars to provide an accessible seating area, composed of a wheelchair tie-down with independent access to an accessible washroom.

a) Accessible seating area

i - Routes

[30] The current design proposal shows that the tie-down and adjacent accessible washroom allow for autonomous accessibility by providing direct access to the economy coach car through a 810 mm-wide exterior door into an expanded vestibule area. The vestibule area will provide a 1500 mm turning radius and a 900 mm-wide aisle to reach the accessible seating area.

ii - Accessible washroom

[31] A person using a Personal Wheelchair will enter the accessible washroom through a 1000 mm-wide power-operated door, the controls of which will be situated in accordance with CSA B651. The washroom will measure 2000 mm wide at the widest point along the exterior wall of the washroom and 1650 mm long, and provide a 1500 mm turning radius within the washroom. The toilet will be located in the left-hand corner upon entering the washroom. There will be spaces to the right and to the left of the toilet (900 mm by 1650 mm and 1050 by 1500 mm) which exceed the Personal Wheelchair footprint and which permit a wheelchair to be positioned at a 45-degree angle to the toilet for transfer purposes.

[32] The sink will be positioned in the right-hand corner upon entering the washroom, allowing for front and side access. Washroom accessories, such as grab bars, toilet paper and paper towel holders, soap dispensers, emergency call button, flush controls, faucets, and mirrors, will be installed in compliance with CSA B651. With respect to the flip-down grab bars to allow for unassisted transfer, VIA also commits to seek expert advice and consult as to the most appropriate grab bars to install for the proposed configuration.

iii - Wheelchair tie-down

[33] VIA proposes to locate the tie-down on the double-seat side of the economy coach car to provide more space and drive-in access. The tie-down is 820 mm from the closest corner of the accessible washroom to the edge of the wheelchair footprint in the tie-down. According to VIA's current design proposal, a floor space of approximately 1280 mm wide by 1500 mm long will be available in the tie-down space along the car wall, and a space of 1280 mm wide by 1120 mm long on the aisle side.

[34] The unobstructed turning radius of 1500 mm in the tie-down position, which is in compliance with CSA B651, will allow manoeuvring in and out of the position. A small portion of the turning radius is protruding into the aisle space, but will not interfere with other passenger traffic as it will only be used temporarily.

[35] A lowered row of double seats will face the tie-down to provide space for two travel companions or attendants.

[36] A flip-up table at the tie-down area will be installed on tracks to move up or down and forwards or backwards, depending on where the person is positioned in the tie-down and the height of the wheelchair. In addition, space for a service animal will be provided in front of the person if the wheelchair is secured at the back of the tie-down area or to the left of the person.

[37] VIA confirms that the window height at the tie-down area is low enough to allow an adult to look out the window from the floor-level tie-down.

Findings - economy coach cars

[38] All door openings and aisles in and between the accessible areas of the economy coach cars are of a minimum of 810 mm in width.

[39] Furthermore, the provision of 1500 mm turning circles within the washroom and the tie-down area will permit greater manoeuvrability within these areas, as will the provision of drive-in access to the tie-down. In compliance with CSA B651, the floor space in the washroom allows for assisted and unassisted transfers to the toilet and there is adequate clear floor space in the tie-down area to accommodate a person using a Personal Wheelchair. Finally, the provision of a movable table, attendant seating facing the tie-down as well as sufficient space for a service animal at the tie-down and a service animal or an attendant within the washroom are all features that contribute to the accessibility of these areas in the economy coach cars. The Agency is therefore satisfied that VIA's current design proposal for the accessible washroom and seating area in the economy coach cars, including its commitment to ensure that fixtures and features will be installed in accordance with CSA B651, will provide an appropriate level of accommodation for persons with disabilities who use Personal Wheelchairs.

b) Space for service animals (VIA's proposed design, as described in this Decision, is shown in Appendix D)

[40] VIA's current design proposal and proposed policy provide for the following spaces to accommodate persons with disabilities travelling with service animals:

one of the existing quad seating spaces (two rows of double seats that face each other) per economy coach car will be allocated, upon request, to allow two persons and two service animals to sit together; the floor space measures approximately 1230 mm wide and 635 mm between seat cushions, with a clear height under the table of 676 mm; VIA will implement a policy that allows this space to be reserved exclusively for two individuals travelling with two service animals, upon receipt of the standard 48-hour advance notice and subject to availability;
in the event that a larger space is required for the service animal, VIA will make available the quad area for the exclusive use of the individual and the animal or, subject to availability and 48-hour advance notice, the tie-down space; and
the lowered row of double seats at the trailing end of each economy coach car (1280 mm wide and 370 mm from the front of the seat cushion to next seat back) can also be used to accommodate one person with one service animal. VIA indicates that it will not assign the second seat at this location to allow for sufficient space for the service animal.

Findings - space for service animals

[41] The Agency notes the Canadian Guide Dogs for the Blind's comments, as submitted by CCD, that the proposed seating, together with VIA's policy to allow seats to remain vacant, will address the needs of persons accompanied by certain, but not all, guide dogs. The Agency also notes the agreement between CCD and VIA regarding the implementation of a policy to accommodate persons with larger breeds of dogs.

[42] The Agency is satisfied that VIA's current design proposal and proposed policy, as set out above, will provide an appropriate level of accommodation on the Renaissance train consists for persons with disabilities who travel with service animals.

Conclusion

[43] Although the Agency will not provide its approval of the necessary modifications until its review of VIA's detailed plans, the Agency finds, on a preliminary basis, that VIA's current design proposal provides an appropriate level of accommodation for persons with disabilities who use Personal Wheelchairs and persons with disabilities who travel with service animals.

[44] The Agency therefore varies Decision No. 620-AT-R-2003 by replacing the order for corrective measures contained therein with the following order:

In at least one sleeper car in every Renaissance night train consist where a sleeper car service is offered, provide at least one accessible sleeping area by implementing the current design proposal, including VIA's commitments as confirmed by VIA in its submission dated July 11, 2008, and reflected in this Decision, and by ensuring that:
1. aisles and door openings both in the route to access and within the accessible sleeping area, excluding the separate entrance to the sleeping area from the sleeper car aisle into the bedroom, are at least 810 mm wide;
2. the sleeping area is comprised of an accessible bedroom and washroom with sufficient clear floor space to accommodate persons using Personal Wheelchairs, and to accommodate their attendants and/or service animals;
3. the location and design of all features such as power-operated door controls, grab bars, toilet paper and paper towel holders, soap dispensers, emergency call buttons, flush controls, faucets, and mirrors will be installed in compliance with CSA B651;
4. the accessible sleeper car is marshalled in such a way that the accessible sleeping area is adjacent to the vestibule end of a service car to ensure a route that is accessible to a person using a Personal Wheelchair to the accessible sleeping area; and
5. the diaphragm doors between the service car and the accessible sleeper car will be kept locked in the open position when the accessible suite is occupied by a person with a disability.
In at least one economy coach car in every Renaissance train consist, provide at least one accessible seating area by implementing the current design proposal, including VIA's commitments as confirmed by VIA in its submissions dated July 11 and 15, 2008, and reflected in this Decision, and by ensuring that:
1. aisles and door openings both in the route to access and within the accessible seating area are at least 810 mm wide;
2. there is a washroom that can accommodate a person using a Personal Wheelchair including an attendant and/or a service animal, in close proximity to the wheelchair tie-down;
3. there is sufficient clear floor space in the wheelchair tie-down area to accommodate a person using a Personal Wheelchair and a service animal; and the tie-down area, in conjunction with the area that is adjacent to it, provides adequate manoeuvring and turning space to allow a person using a Personal Wheelchair to manoeuver into and out of the tie-down area and access the accessible washroom; and
4. there is seating for an attendant, which faces the wheelchair tie-down.
In every Renaissance economy coach car, to ensure sufficient space is provided for persons who travel with service animals, implement the current design proposal and the following policy, subject to availability and VIA's 48-hour advance notice provisions:
1. one of the existing quad seating spaces per economy coach car will be allocated, upon request, to allow two persons and two service animals to sit together; this space will be reserved exclusively for two individuals travelling with two service animals;
2. in the event that a larger space is required for the service animal, VIA will make available the quad area or the tie-down space for the exclusive use of the individual and the animal; and
3. the lowered row of double seats at the trailing end of each economy coach car will also be used to accommodate one person with one service animal; the second seat at this location will not be assigned.
In every Renaissance coach car, to ensure that there are at least two additional movable aisle armrests on the double-seat side, in addition to the existing four moveable aisle armrests.
With respect to the exterior stairs to the cars, to ensure that the stair risers on the Phase 1 Renaissance cars are closed.
Because these changes will necessitate changes to VIA's policies and procedures, VIA will modify its internal and external information sources to reflect these changes, including internal policy, procedures and training material relied on by its personnel, information contained on its Web site and published documents that are available to the public.

[45] VIA's proposed schedule indicates that the modifications to the sleeper cars will be completed on June 2, 2010, and the modifications to the accessible economy coach cars will be completed on October 18, 2010. The installation of the liftable armrests and the lowered double seats on the remaining 38 Renaissance coach cars are scheduled to begin on February 11, 2010, with a completion date of October 14, 2011.

[46] VIA is therefore required to submit by September 22, 2009, the detailed plans from an accessibility perspective, including a final implementation schedule, to obtain the Agency's final written approval prior to VIA's implementation of the corrective measures.

[47] This Decision takes effect on July 22, 2008, the date on which it was verbally communicated to the parties.