Decision No. 47-AT-R-2002
January 28, 2002
APPLICATION by Elliott Richman, pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, concerning the absence of TTY (telephone-teletype devices for persons who are deaf or hard of hearing) pay telephones in seven VIA Rail Canada Inc. stations, namely Vancouver, British Columbia; Edmonton, Alberta; Saskatoon, Saskatchewan; Winnipeg, Manitoba; Niagara Falls, Ontario; and Montréal and Québec, Quebec.
File No. U 3570/00-22
APPLICATION
On February 11, 2000, Elliott Richman filed seven applications with the Canadian Transportation Agency (hereinafter the Agency) with respect to the matter set out in the title.
On March 23, 2000, VIA Rail Canada Inc. (hereinafter VIA) filed its answer to the applications. Mr. Richman filed his reply on March 27, 2000. By Decision No. LET-AT-R-246-2001 dated May 22, 2001, the Agency required VIA to file additional information. VIA filed the requested information on May 23, 2001.
PRELIMINARY MATTER
Given that the applications involve the same respondent and raise the same issue with respect to all stations named above, the Agency considered it appropriate to process them jointly as a single application. In addition, the Agency considered broadening the scope of its investigation to include all stations in VIA's network. By Decision No. LET-AT-R-68-2000 dated March 9, 2000, the Agency sought VIA's comments on this matter.
By letter dated March 23, 2000, VIA agreed to process the seven applications as a single application. Further, VIA informed the Agency that it had installed TTYs at some stations and will install TTYs at other stations. VIA therefore believed that broadening the scope of the Agency's investigation to include all stations in VIA's network did not appear necessary. On April 27, 2000, Mr. Richman advised the Agency that he has no problem with VIA's assertion that the scope of the investigation not be broadened to include all the VIA stations and indicated that he alone would broaden the scope of the investigation by filing more complaints against the remaining stations in VIA's network. In a letter dated June 29, 2000, the Director of the Agency's Accessible Transportation Directorate stated: "As regards the other stations in VIA's rail network, it is understood that the parties agree that they should not form part of the Agency's current investigation, but that the parties would pursue their dialogue in an attempt to agree on a course of action".
ISSUE
The issue to be addressed is whether the absence of TTY pay telephones at the seven VIA stations referred to above at the time of the application constituted undue obstacles to the mobility of travellers who are deaf or hard of hearing and, if so, what corrective measures should be taken.
FACTS
Mr. Richman is deaf and requires the use of a TTY to communicate by telephone. The seven VIA stations referred to above are equipped with public pay telephones. At the time the application was filed, none of the stations were equipped with TTY pay telephones.
POSITIONS OF THE PARTIES
Mr. Richman submits that hearing passengers have the capacity of communicating by telephone through the use of regular pay telephones installed at all of the VIA stations referred to above. However, persons who are deaf are unable to do the same. Mr. Richman is of the opinion that the absence of TTY pay telephones at those stations constitutes an undue hardship to persons who are deaf.
Mr. Richman requests that the VIA stations in question be equipped with TTY pay telephones for the benefit of all TTY users, including travellers who are deaf, hard of hearing, late deafened, persons with a speech impairment, as well as their hearing relatives, friends and colleagues.
VIA states that it has undertaken to install TTY pay telephones at the Vancouver, Edmonton, Winnipeg and Québec stations. In addition, VIA will also have TTYs installed in six other stations not included in Mr. Richman's application, namely at Sainte-Foy, Kingston, London, Windsor, Belleville and Jasper. VIA indicates that it will confirm the installation dates for these TTYs to the Agency as they become known.
VIA informed the Agency that a TTY pay telephone has been installed at its Montréal station as well as in six other stations not included in Mr. Richman's application, namely: Halifax, Truro, Moncton, Bathurst, Ottawa and Toronto.
Mr. Richman states that VIA made no mention of the installation of TTYs at the Saskatoon or Niagara Falls stations, and that he still expected TTY pay telephones to be installed at both of these locations.
VIA submits that the passenger volumes (On and Off) at each of the Saskatoon and Niagara Falls stations for the year 2000 were as follows:
On | Off | |
---|---|---|
Niagara Falls station | 62,204 | 57,575 |
Saskatoon station | 3,023 | 2,905 |
ANALYSIS AND FINDINGS
In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings.
An application must be filed by a person with a disability or on behalf of a person with a disability. Mr. Richman is a person who is deaf and, as such, is a person with a disability for the purpose of applying the accessibility provisions of the Canada Transportation Act (hereinafter the CTA).
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 those questions, the Agency must take into consideration the particular facts of the case before it.
Whether the applicant's mobility was restricted or limited by an obstacle
The word "obstacle" is not defined in the CTA. This implies that Parliament did not want to restrict the Agency's jurisdiction in view of its mandate to eliminate undue obstacles in the federally-regulated transportation network. Furthermore, the word "obstacle" lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement.
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 at the situation described in the application. There is a broad range of circumstances where the Agency has found obstacles in the past. For example, there are cases of 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 has found obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience were such as to detract from the person's sense of confidence, dignity, safety, or security, recognizing that these feelings may be such as to disincline a person from future travel.
The case at hand
The Agency is of the opinion that the ability to communicate by telephone while at a transportation terminal is essential for all travellers including those who are deaf or hard of hearing. However, in this situation, the telephone services offered in the seven stations at the time of the application were not accessible to all travellers. Persons who are deaf or hard of hearing are prevented from communicating by telephone where TTY services are non-existent.
In light of the foregoing, the Agency finds that the absence of a TTY pay telephone at the Vancouver, Edmonton, Saskatoon, Winnipeg, Niagara Falls, Montréal and Québec stations at the time of the application constituted obstacles to the mobility of persons who are deaf or hard of hearing.
Whether the obstacles were undue
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 federally-regulated 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 federally-regulated 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, so far as practicable, not constitute an undue obstacle to the mobility of persons with disabilities.
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 federally-regulated transportation network to adapt their services, so far as 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 to adopt services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board a plane 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 deplaning 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 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
Having found that the absence of TTY pay telephones at the seven stations referred to above constituted obstacles, the Agency will now consider whether the obstacles were undue.
The Agency is of the opinion that where passenger volume and/or other circumstances warrant, TTYs should be made available at VIA's stations.
The Agency is of the view that TTYs are commonly available and the costs associated with the installation and the maintenance of such a service are reasonable. Further, the Agency is of the opinion that given the passenger volumes and nature of VIA's operations at the Vancouver, Edmonton, Winnipeg, Niagara Falls, Montréal and Québec stations, the installation of TTYs is required. Therefore, and in view of the limited financial impact on VIA, as discussed above, the Agency finds that the absence of TTY services at these stations constitutes undue obstacles to the mobility of persons who are deaf or hard of hearing.
Furthermore, the Agency recognizes that the installation of appropriate signage is required in order to ensure that persons who are deaf or hard of hearing are aware of this service.
With respect to the Saskatoon station, the annual passenger volumes recorded at this station in 2000 (On: 3,023; Off: 2,905) indicate that this is a minor station. It is reasonable to assume that, in the absence of any particular circumstances which would warrant a different conclusion, the demand for a TTY service would be very limited at this station.
In making this statement, the Agency does not minimize the importance of TTY services to the community of persons who are deaf and hard of hearing. However, the Agency, in considering the issue of undueness, must balance the interests of carriers and persons with disabilities. In this case, the Agency finds that, given the low passenger volumes and in the absence of any particular circumstances, the absence of TTY services at the Saskatoon station does not, at this time, constitute an undue obstacle to the mobility of persons who are deaf or hard of hearing.
The Agency emphasizes that it continues to review the issue of communication barriers for persons with disabilities and that the matter of TTY pay telephone services is also being considered within the context of a new code of practice on communication issues.
Measures taken and to be taken
The Agency notes that the Montréal station is now equipped with a TTY service and that VIA has equipped other stations not included in Mr. Richman's application with the service. The Agency is of the opinion that the measures undertaken by VIA at these stations should assist in eliminating undue obstacles to the mobility of persons with disabilities, particularly persons who are deaf or hard of hearing. However, the Agency requires VIA to provide to the Agency a written confirmation of the location of the TTY and the signage at the Montréal station.
The Agency further notes from the submissions on file that VIA will have TTY pay telephones installed at the Vancouver, Edmonton, Winnipeg and Québec stations and at six other stations not mentioned in Mr. Richman's application. VIA has indicated that it will confirm to the Agency the installation dates of these TTYs. The Agency is of the opinion that VIA should proceed with the planned installation of TTYs at the Vancouver, Edmonton, Winnipeg and Québec stations and ensure that appropriate signage to direct passengers to the location of the TTY pay telephone is installed. Further, VIA should provide the Agency with written confirmation that these TTY pay telephones as well as appropriate signage have been installed and their location at each station.
With respect to the Niagara Falls station, the Agency notes that VIA did not present a proposal concerning the installation of TTY pay telephones. However, the Agency requires VIA to install a TTY pay telephone, as well as appropriate signage to direct passengers to the location of the TTY pay telephone, and to provide the Agency with written confirmation that the TTY pay telephone and appropriate signage have been installed and their location at the station.
With respect to the Saskatoon station, the Agency finds it reasonable to expect that, if the volume of passengers increases or new factors arise, the matter may be revisited by the Agency.
CONCLUSION
With respect to the Vancouver, Edmonton, Winnipeg, Niagara Falls, Montréal and Québec stations, the Agency finds that the absence of TTY pay telephones at the time of the application did constitute undue obstacles to the mobility of persons who are deaf or hard of hearing. Consequently, the Agency hereby directs VIA to take the following corrective measures within sixty (60) days from the date of this Decision:
- Provide the Agency with a written confirmation of the location of the TTY pay telephone and the related signage at the Montréal station.
- Proceed with the planned installation of TTYs at the Vancouver, Edmonton, Winnipeg and Québec stations and ensure that appropriate signage directing passengers to their location is installed.
- Provide the Agency with written confirmation that the TTY pay telephones and appropriate signage have been installed and the location of the TTY in each of the stations.
- Install a TTY telephone at its Niagara Falls station and appropriate signage directing passengers to its location. Provide the Agency with written confirmation that the TTY pay telephone and the appropriate signage have been installed and the location of the TTY pay telephone and appropriate signage.
The Agency concludes that the absence of a TTY pay telephone at the Saskatoon station does not constitute an undue obstacle to the mobility of persons who are deaf or hard of hearing. However, the Agency finds it reasonable to expect that, if the volume of passengers increases or new factors arise, the matter may be revisited.
Members
- Gilles Dufault
- Keith Penner
- Date modified: