Decision No. 415-AT-R-2012

INTRODUCTION

[1] Barry Kelly filed an application with the Canadian Transportation Agency (Agency) pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA) against VIA Rail Canada Inc. (VIA) with respect to the substitution of his travel by train, between Québec and Montréal, Quebec, with a bus on November 23, 2011 following a cancellation of the train. Mr. Kelly claims that the conditions of the substituted service resulted in physical discomfort, a panic attack and generalized anxiety. In his application, Mr. Kelly raises the following issues:

1. The alternative means of transportation, i.e., bus transportation, provided to Mr. Kelly on his November 23, 2011 trip;
2. VIA’s refusal to assign seats prior to boarding the bus on November 23, 2011; and,
3. VIA’s refusal to place a permanent note on Mr. Kelly’s file setting out his health circumstances.

BACKGROUND: PROCEDURAL MATTER

[2] In a letter dated March 27, 2012, Mr. Kelly was informed that the Agency uses the World Health Organization’s (WHO) International Classification of Functioning, Disability and Health (ICF) in cases where additional evidence is required to establish both a person’s disability and need for accommodation. The Agency advised Mr. Kelly that he needed to provide sufficient medical evidence to support the existence of a disability as well as the related need for accommodation. Mr. Kelly was provided with the definitions of certain concepts from the ICF (disability, impairment, activity limitation and participation restriction) and was advised that, while an activity limitation may range from slight to severe, the Agency is of the opinion that, for the purposes of an application pursuant to Part V of the CTA, an activity limitation must be significant enough to result in an inherent difficulty in executing a task or action.

[3] The Agency required Mr. Kelly to provide a letter or medical certificate from a qualified physician or mental health professional (such as a psychologist) which describes: his mental health conditions and how travelling by train and by bus – including as this pertains to his requested seating accommodations – impacts on these conditions, including the severity and duration of any symptoms and required medication and/or medical treatment, and the loss or abnormality in body structure or physiological function associated with his height. He was also required to provide information about his height and certain measurements taken from a seated position.

THE LAW

[4] The Agency’s legislative mandate with respect to persons with disabilities is found in Part V of the CTA, which contains a regulation-making authority [subsection 170(1)] and a complaint adjudication authority [subsection 172(1)], both for the express purpose of removing undue obstacles to the mobility of persons with disabilities from the federal transportation network.

[5] When adjudicating an application, 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 a 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 will order corrective measures necessary to remove the undue obstacle.

ISSUE

[6] The Agency examines the following issue: Is Mr. Kelly a person with a disability for the purposes of Part V of the CTA as a result of his:

1. mental health conditions;
2. height;
3. psoriatic arthritis?

CONCLUSION

[7] As indicated in the reasons that follow, the Agency finds that Mr. Kelly is not a person with a disability for the purposes of Part V of the CTA.

FACTS, EVIDENCE AND SUBMISSIONS

[8] Mr. Kelly, who has mental health conditions and psoriatic arthritis, submits that when making reservations to travel by rail, he requests seating towards the back of the rail car where it is quieter and there is less activity. He further requests a full window to help control his panic attacks. Finally, if he travels alone, he requests to be seated by himself or will purchase an additional seat.

[9] Mr. Kelly states that he advised VIA that travelling by bus, which was provided by VIA as an alternative to the cancelled train service of November 23, 2011, would not be a good option for him in light of the conditions referred to above. Mr. Kelly further states that he explained to a VIA agent that, in addition to his health issues, due to his height and body stature, the seat pitch in a bus would be insufficient unless he could sit in the front seats of the bus.

[10] Mr. Kelly asserts that the agent informed him that it was Mr. Kelly’s responsibility to obtain the best seating possible. Mr. Kelly adds that the seating accommodations he had arranged for travel on board one of VIA’s trains were not provided on the bus and that VIA would not provide any alternative. He states that the seating on the bus left him in discomfort and aggravated his anxiety.

[11] Mr. Kelly also submits that VIA has refused his request for a permanent note to be placed on a personal file outlining his health conditions and related needs.

ANALYSIS AND FINDINGS

The Agency’s approach to the determination of disability

[12] While there are situations where a disability is self-evident (e.g. a person who uses a wheelchair), there are cases where additional evidence is required to establish both the disability and the need for accommodation. In assessing those cases, the Agency may use the ICF, an internationally accepted tool for the consistent classification of functioning and disability associated with health conditions, other related WHO publications, and/or medical documentation.

[13] In accordance with the ICF, the Agency views a disability as comprising three dimensions: impairment, activity limitation and participation restriction. The Agency’s decision precedents require that all three dimensions be established in order for a disability to exist for the purposes of Part V of the CTA.

Impairment

[14] The ICF defines impairment as a loss or abnormality of a body part (i.e., structure) or the loss or deviation in body function (i.e., physiological function). The ICF clarifies that “abnormality” refers to a significant variation from established statistical norms. The existence of an impairment may be temporary or permanent.

[15] To determine whether a person’s health condition qualifies as an impairment, the Agency uses the ICF, other related WHO publications such as the International Statistical Classification of Diseases and Related Health Problems (ICD-10), and/or medical documentation.

Activity limitation

[16] Activity limitation, as defined in the ICF, is a difficulty an individual experiences while executing activities. The activity limitation associated with an impairment therefore relates to the presence of symptoms and resulting difficulties, irrespective of context.

[17] The ICF states that an activity limitation may range from a slight to a severe deviation in terms of quality or quantity in executing an activity in a manner or to the extent that is expected of people without the impairment.

[18] An activity limitation does not need to fall at the extreme end of this spectrum, although, for the purposes of the Agency’s determination of disability, the activity limitation must be significant enough to result in an inherent difficulty in executing a task or action.

Participation restriction

[19] Participation restrictions, as defined in the ICF, are problems an individual may experience in involvement in life situations.

[20] Unlike an activity limitation, a participation restriction depends on the context – in this case, the federal transportation network. The Agency therefore determines the existence of a participation restriction by comparing the individual’s access to the federal transportation network with that of an individual without the related activity limitation.

[21] A person’s impairment and related activity limitation may result in a participation restriction in some contexts. However, this does not mean that the person will necessarily experience a participation restriction in using the federal transportation network.

[22] It is the applicant’s responsibility to provide sufficiently persuasive evidence to establish the existence of a disability in terms of impairment, activity limitation and participation restriction.

This case

[23] The Agency is of the opinion that the ICF provides a valid framework for the Agency’s analysis and determination of whether Mr. Kelly is a person with a disability for the purposes of Part V of the CTA. The Agency’s process invites the participation and input of each of the parties. Mr. Kelly, therefore, had the opportunity to file evidence in support of his contention that he is a person with a disability for the purposes of Part V of the CTA.

Is Mr. Kelly a person with a disability due to his mental health conditions?

Impairment

[24] Mr. Kelly filed a report from his psychiatrist, dated February 20, 2009 (which is a medical disability release letter from the workplace), which sets out that he has generalized anxiety, with social phobia and major affective disorder components, and significantly slow psychomotor functions.

[25] The sub-category of “emotional functions”, which is included in the broader category of specific mental functions in the ICF, encompasses “specific mental functions related to the feeling and affective components of the processes of the mind” and explicitly includes anxiety. “Psychomotor functions” are also listed among the sub-categories of mental functions in the ICF. Finally, the Agency accepts that social phobias also form part of the sub-category of “emotional functions” in the ICF.

[26] The Agency notes that affective disorders are included in the “Mood (affective) disorders” category of ICD-10 and are further referenced in the ICF’s “Global mental functions” category.

[27] In light of the above, the Agency finds that Mr. Kelly has an impairment relating to his mental health conditions.

Activity limitation

[28] The report from Mr. Kelly’s psychiatrist states that Mr. Kelly “displays significant symptoms of disability” and explains that when he is in social situations or professional situations where he must leave home, he becomes very anxious and has difficulty functioning. The report states that Mr. Kelly’s symptoms are very incapacitating.

[29] The report from Mr. Kelly’s psychiatrist describes problems related to mental functioning. With respect to the severity of these problems, the report describes them as being very incapacitating. The Agency therefore finds that Mr. Kelly experiences an activity limitation due to his mental health conditions.

Participation restriction

[30] As noted above, Mr. Kelly submits that when making reservations to travel by rail, he requests seating towards the back of the rail car where it is quieter and there is less activity. He also requests a full window to help control his panic attacks and, if he travels alone, he requests to be seated by himself or will purchase an additional seat.

[31] The Agency required Mr. Kelly to provide a medical certificate from a qualified physician or mental health professional that describes his mental health conditions and how travelling by train and by bus, including as it pertains to preferred seating, impacts his conditions, including the severity and duration of any symptoms and required medication and/or medical treatment.

[32] Mr. Kelly refers to the 2009 report from his psychiatrist and questions what more the Agency could possibly need.

[33] Neither Mr. Kelly nor his psychiatrist’s report address how travelling within the federal transportation network by train or bus impacts Mr. Kelly’s mental health conditions or the severity and duration of any symptoms. While Mr. Kelly states that it is quieter and there is less activity at the back of a rail car, he does not explain how noise and activity impacts his conditions. Additionally, Mr. Kelly seems to indicate that travelling in a seat without a full window may impact his anxiety; however, the psychiatrist’s report does not address this. Neither Mr. Kelly nor his psychiatrist address the severity and/or duration of panic attacks that Mr. Kelly experiences when sitting in a seat without a window or beside a stranger.

[34] The Agency therefore finds that Mr. Kelly has not demonstrated, on a balance of probabilities, that he experiences a participation restriction in the context of travelling by rail or bus within the federal transportation network as a result of his mental health conditions.

Conclusion

[35] In light of the above, the Agency finds that Mr. Kelly has not provided sufficient evidence to demonstrate that, for the purposes of Part V of the CTA, he is a person with a disability as it relates to his mental health conditions.

Is Mr. Kelly a person with a disability due to his height?

Impairment

[36] Mr. Kelly states that his height is six feet and one inch. He further states that he measures 43 inches from his waist to his feet, 26 inches from his back to his knees, and between 22 and 23 inches from the top of his knees to his feet.

[37] While Mr. Kelly provides his height and leg measurements, he does not provide any evidence to demonstrate that they constitute an impairment, i.e., a loss or abnormality in body structure or physiological function.

[38] As such, the Agency finds that Mr. Kelly has not met his evidentiary burden of demonstrating the existence of an impairment as it relates to his height, which is a prerequisite to a positive finding of disability. Therefore, there is no need for the Agency to consider, as it relates to Mr. Kelly’s height, whether he has demonstrated the existence of the two other elements of disability, i.e., an activity limitation and a participation restriction in the context of rail and bus travel.

Conclusion

[39] In light of the above, the Agency finds that Mr. Kelly has not provided sufficient evidence to demonstrate that, for the purposes of Part V of the CTA, he is a person with a disability as it relates to his height.

Is Mr. Kelly a person with a disability due to his psoriatic arthritis?

Impairment

[40] A note from Mr. Kelly’s rheumatologist states that Mr. Kelly has psoriatic arthritis with involvement of the peripheral joints and the spine. Arthritis is listed in the ICF under “mobility of joint functions”, which is found in the category of “Functions of the joints and bones”. The Agency therefore finds that Mr. Kelly has an impairment as it relates to his psoriatic arthritis.

Activity limitation and participation restriction

[41] Mr. Kelly’s rheumatologist states that arthritis can cause discomfort, pain, stiffness and limited functionality and that Mr. Kelly’s psoriatic arthritis results in limitation of certain movements involving his lower limbs and spine.

[42] The Agency accepts that, due to his psoriatic arthritis, Mr. Kelly experiences activity limitations due to limitations in overall functionality and in certain movements of the lower limbs and spine, and that these limitations are significant enough to result in an inherent difficulty in executing a task or action.

[43] While Mr. Kelly’s rheumatologist refers to Mr. Kelly’s need for a “comfortable situation for usage of public transportation”, neither the rheumatologist nor Mr. Kelly provides sufficient information to demonstrate how travelling by rail or bus within the federal transportation network impacts Mr. Kelly’s condition or the severity and duration of any symptoms. The Agency therefore finds that Mr. Kelly has not demonstrated, on a balance of probabilities, that he experiences a participation restriction in the context of the federal transportation network as a result of his psoriatic arthritis.

Conclusion

[44] In light of the above, the Agency finds that Mr. Kelly has not provided sufficient evidence to demonstrate that, for the purposes of Part V of the CTA, he is a person with a disability as it relates to his psoriatic arthritis.

CONCLUSION

[45] In light of the foregoing, the Agency finds that Mr. Kelly has not provided sufficient evidence to demonstrate that, for the purposes of Part V of the CTA, he is a person with a disability due to his mental health conditions, height or psoriatic arthritis. As a result, the Agency will not address whether Mr. Kelly encountered an obstacle to his mobility. Therefore, the Agency dismisses the application.