Decision No. 520-AT-R-2004

October 1, 2004

Follow-up - Decision No. 10-AT-R-2005

October 1, 2004

IN THE MATTER OF Decision No. 366-AT-R-2003 dated June 19, 2003, which was a follow-up to Decision No. 632-AT-R-1998 dated December 21, 1998 - VIA Rail Canada Inc.

File No. U3570/98-19


BACKGROUND

[1] In its Decision No. 632-AT-R-1998 dated December 21, 1998, the Canadian Transportation Agency (hereinafter the Agency) made a determination with respect to an application filed by Donna Pistell regarding the difficulties she experienced when attempting to make travel arrangements on VIA Rail Canada Inc.'s (hereinafter VIA) passenger rail service on Vancouver Island.

[2] The Agency determined that there were two accessibility-related elements of Ms. Pistell's complaint:

  1. Does VIA provide a passenger rail service that allows a person in a wheelchair to travel on its Vancouver Island service?
  2. Is VIA providing complete and adequate information to potential travellers on the accessibility of its services?

[3] The Agency was of the opinion that all travellers must be able to travel on the transportation network subject to federal jurisdiction without undue obstacles to their mobility. The Agency recognized certain limitations faced by VIA in terms of equipment and limited accessibility to some of its stations on the Vancouver Island route. The Agency noted, however, that VIA stated that it does provide, upon request, entraining and detraining assistance at the three staffed stations at Victoria, Nanaimo and Courtenay. The Agency also noted that VIA indicated that travellers requiring entraining or detraining assistance at any other point are provided with a taxi service to its closest accessible station. The Agency was therefore of the opinion that VIA appeared to provide an accessible service to travellers with specific needs.

[4] In that same Decision, the Agency also indicated that it was of the opinion that there was no evidence to indicate that travellers were aware of these options. The Agency noted that the complaint highlighted the importance for a service provider who provides a limited level of accessibility to ensure that the public and potential users of its services are aware of what is provided and under what circumstances.

[5] The Agency found that the inadequate information provided to Ms. Pistell about VIA's passenger rail service on Vancouver Island and the fact that Ms. Pistell could not travel as planned constituted an undue obstacle to her mobility. The Agency also found that both potential users of VIA's services and VIA employees who must provide the services and advise the public of their availability should be made aware of the services offered by VIA to meet the requirements of persons with disabilities.

[6] In order to ensure the completeness of information available to VIA reservation agents on the accessibility of VIA's Vancouver Island services, VIA was required to provide, for the Agency's review, a copy of the training material on its new VIANET reservation system and a copy of the training schedule of all of its telephone reservation agents on this new system.

[7] In addition, VIA was required to:

  • issue a bulletin to all telephone reservation agents outlining the misinformation provided to Ms. Pistell and highlighting how VIA meets the needs of persons with disabilities on its services on Vancouver Island. A copy was to be forwarded to the Agency for its information;
  • issue a public notice and have same carried in local Vancouver Island papers advising that VIA will provide a passenger who requires assistance to entrain and detrain, with transportation at VIA's expense to the nearest VIA accessible station where such assistance is available. A copy of the notice as well as a list of the papers in which it was published was to be provided to the Agency for its information.

Developments following the issuance of Decision No. 632-AT-R-1998

[8] Following the issuance of Decision No. 632-AT-R-1998, Ms. Pistell provided additional comments on the actual accessible services provided by VIA on Vancouver Island and VIA provided its response to the Decision. Following its review of Ms. Pistell's letter and the material provided by VIA, the Agency, by Order No. 1999-AT-R-63 dated February 3, 1999, determined that it was necessary for the Agency to review the public notice required by Decision No. 632-AT-R-1998, in advance of VIA's publication, to ensure that it provided a clear and accurate description of the level of accessibility provided by the Vancouver Island service and the available alternatives to the service. By Order No. 1999-AT-R-63, the Agency also stayed the requirement specified in Decision No. 632-AT-R-1998 that VIA publish a public notice in Vancouver Island's local newspapers.

[9] On April 27, 1999, VIA clarified its policy for alternative transportation on Vancouver Island. VIA advised that "the customer travelling alone from Nanaimo to Duncan, who is self-reliant and uses a manual wheelchair (ex. drives on their own to the Nanaimo station; can use the train washroom on their own, etc.) must be accompanied by an able-bodied person at the Nanaimo station and at the Duncan station to assist in entraining and detraining". VIA also noted "that there is only one employee on board the Victoria-Courtenay train". VIA further stated that "for safety reasons, the sole employee on board the train cannot be expected to lift more than 75 lbs (34 kg) at the time of entraining and detraining." VIA also advised that "should an able-bodied attendant not be available for the Nanaimo or Duncan station(s), VIA Rail would provide alternate taxi transportation at its expense from the Nanaimo station to the Duncan station (in accordance with VIA Rail's train schedule)".

[10] Further, on February 24, 2000, VIA was requested to provide clarifications regarding the material submitted, including: VIA's amended public notice, as it appeared that the public notice did not reflect VIA's policy of generally providing alternate ground transportation at VIA's expense to all persons who cannot be accommodated to/from any station on Vancouver Island, whether that be due to the lack of mechanical lifts for electric wheelchairs and scooters or a lack of resources for entraining or detraining assistance. On March 27, 2000, VIA submitted its response to the requested clarifications. VIA indicated that it considered the Agency's observation regarding the proposed public notice and provided a revised public notice which "articulates VIA Rail's policy of generally providing alternative ground transportation at VIA Rail's expense".

[11] Following the above, the Agency determined, by Decision No. LET-AT-R-108-2000 dated April 20, 2000, that the proposed public notice submitted by VIA clearly reflected an accurate description of the level of accessibility of the Vancouver Island service and the alternatives available to those wishing to use the service. In this regard, the proposed notice indicated that for passengers who are unable to entrain and detrain due to restricted staff or lack of mechanical lifts for electric wheelchairs and scooters, VIA will provide alternative taxi/van transportation at its expense between train stations and in accordance with its train schedule. As a result, VIA was directed to proceed with the publication.

Decision No. 366-AT-R-2003, which was a follow-up Decision to Decision No. 632-AT-R-1998

[12] In Decision No. 366-AT-R-2003 dated June 19, 2003, the Agency noted that VIA had published the public notice as directed by the Agency in Decision No. LET-AT-R-108-2000 dated April 20, 2000. In the same decision, the Agency indicated that it found no reference in VIA's bulletin or VIANET to the fact that persons using a manual wheelchair who cannot provide their own assistance for entraining and detraining are also to be offered alternative transportation at VIA's expense. The Agency then referred back to VIA's public notice and advised that the notice clearly set out the level of accessibility that VIA provides on Vancouver Island. The Agency determined that the information currently posted in the VIANET system and in the bulletin was deficient and did not clearly reflect VIA's policy to offer alternative transportation at VIA's expense to manual wheelchair users as well as to users of electric wheelchairs and scooters.

[13] The Agency was of the opinion that to avoid any misunderstanding and confusion, it would be appropriate for VIA to issue another bulletin to its reservation agents highlighting its policy on alternative taxi/van transportation on Vancouver Island for passengers using manual or electric wheelchairs and scooters.

[14] Based on those findings, the Agency required VIA to take the following measures within thirty (30) days from the date of Decision No. 366-AT-R-2003:

  1. Amend the information in the VIANET system to clearly reflect that VIA will also provide alternative taxi/van transportation, at its expense, to passengers using manual wheelchairs who are unable to board and deboard due to restricted staff, or lack of mechanical lifts; and provide a copy of the amended bulletin to the Agency.
  2. Advise the Agency on the measures it took to ensure its reservation personnel, system-wide, are aware of this amendment.

[15] Following its review of the required material, the Agency would determine whether further action was required in this matter.

[16] On July 15, 2003, VIA submitted its response to Decision No. 366-AT-R-2003, in which it conveys its concern with respect to the "authority of the Agency to render a second decision in the same matter" in light of the fact that 4.5 years elapsed from the time of issuance of Decision No. 632-AT-R-1998 dated December 21, 1998, and Decision No. 366-AT-R-2003 dated June 19, 2003.

[17] In response to VIA's submission dated July 15, 2003, Agency Counsel forwarded correspondence to VIA's Counsel on July 22, 2003, clarifying that Decision No. 366-AT-R-2003 is a follow-up Decision with respect to the corrective measures to be taken by VIA and not a review under section 32 of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA) of a decision previously issued by the Agency. Agency Counsel further explained that, under these circumstances, the Agency remains seized of the matter until it is satisfied that no further action is required.

[18] By Decision No. LET-AT-R-181-2004 dated July 20, 2004, VIA was directed to provide the Agency with a complete response to Decision No. 366-AT-R-2003 within ten (10) days of receipt of Decision No. LET-AT-R-181-2004. Following a review of the required information, the Agency would determine whether further action was required. On July 23, 2004, VIA provided its response to Decision No. LET-AT-R-181-2004.

PRELIMINARY MATTER

[19] The Agency acknowledges VIA's submission that it rejects any suggestion that the Agency remains seized of this matter. In this regard, the Agency notes that the Supreme Court of Canada has dealt with the issue as to whether a board or a tribunal, such as the Agency, is empowered to continue its original proceedings. In Chandler v. Alberta Association of Architects [1989] 2 S.C.R. 848, the Supreme Court noted:

As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. [...]

To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.

[20] It was noted by the Agency in Decision No. 646-AT-A-2001 dated December 12, 2001, and later in Decision No. 175-AT-R-2003 dated March 27, 2003, that Part V of the CTA is, by its nature, human rights legislation. It is widely accepted that human rights legislation should be liberally interpreted in a manner which accords full recognition and effect to the rights protected by such legislation. Accordingly, it is clear that subsection 172(3) of the CTA should be interpreted as including the power to reserve jurisdiction on certain matters in order to ensure that the remedies ordered are forthcoming to applicants. As indicated by the Federal Court in Grover v. Canada (National Research Council) - NRC [1994] F.C.J. No. 1000, "it would frustrate the mandate of the legislation to require the complainant to seek the enforcement of an unambiguous order in the Federal Court or to file a new complaint in order to obtain the full remedy awarded by the Tribunal". Morever, it was specified in Decision No. 632-AT-R-1998 that: "Following its review of the required material, the Agency will determine whether further action is required in this matter."

[21] The Agency is of the opinion that VIA's submission is without merit and accordingly, the Agency concludes that it possesses the power to supervise the implementation of its corrective measures.

ISSUE

[22] The issue to be addressed is whether the information available to reservation agents in the VIANET system, the training information of all telephone reservation agents on this system and the bulletin issued to these agents outlining the misinformation provided to Ms. Pistell satisfy the requirements of Decision No. 366-AT-R-2003 dated June 19, 2003.

POSITION OF VIA

[23] In its submission dated July 23, 2004, VIA indicates that it would explain again its policy on Vancouver Island and its policy in other parts of Canada concerning alternative transportation. VIA further states that as a result of the Pistell case and earlier Agency orders, VIA sent a bulletin to all telephone agents acting for VIA and published a notice in a Vancouver Island newspaper, as required by the Agency. VIA explains that the notice and bulletin inform passengers on Vancouver Island that VIA will provide alternative transportation to passengers using electric wheelchairs who are unable to entrain and detrain due to restricted staff or a lack of mechanical lifts. VIA states that it is able to voluntarily provide this service, having regard to the limited number of requests made on Vancouver Island.

[24] VIA expresses the view that if it were to put the alternative transportation service on the VIANET system, it would become a Canada-wide mandatory policy. In this regard, VIA is not willing or able to commit such resources across Canada, on an obligatory basis.

ANALYSIS AND FINDINGS

[25] The Agency acknowledges VIA's concern; however, the Agency points out that Decision No. 366-AT-R-2003 was with respect to Vancouver Island only and required VIA to amend the information in the VIANET system to clearly reflect that VIA will also provide alternative taxi/van transportation, at its expense, to passengers using manual wheelchairs who are unable to entrain and detrain due to restricted staff or lack of mechanical lifts. In addition, the Agency notes that VIA added a bulletin to its VIANET system regarding its alternative transportation policy for the Vancouver Island market only. The Agency points out that this bulletin, which provides alternative transportation for persons who use electric wheelchairs or scooters and excludes persons who use manual wheelchairs, does not appear to affect VIA's alternative transportation service across Canada.

[26] The Agency notes that in Decision No. 632-AT-R-1998, the Agency found that VIA "appeared to provide an accessible service to travellers with special needs" as VIA advised that it does provide, upon request, entraining and detraining assistance at the three staffed stations at Victoria, Nanaimo and Courtenay and VIA indicated that travellers requiring entraining or detraining assistance at any other point are provided with a taxi service to its closest accessible station.

[27] The Agency acknowledges that VIA's policy with respect to alternative transportation on Vancouver Island was published in the Times Colonist, Vancouver Island's local newspaper on May 24, 2000. The Agency notes that the public notice states VIA's policy on Vancouver Island, including the provision that VIA will provide, at its expense, alternative taxi/van transportation to passengers who are unable to entrain or detrain due to restricted staff or lack of mechanical lifts for electric wheelchairs or scooters. Alternative transportation requires a minimum 24-hour advance reservation notice, and will be provided between train stations, in accordance with VIA's train schedule. The Agency notes that VIA's policy for the provision of alternative transportation to passengers "who are unable to entrain or detrain due to restricted staff" is not limited to the type of wheelchair used and therefore would include persons using manual wheelchairs in addition to persons using electric wheelchairs or scooters. The Agency is of the opinion that the public notice reflects an accurate description of the level of accessibility of the Vancouver Island service and the alternatives available to those wishing to use the service. The Agency notes, however, that VIA's VIANET system and bulletin are currently not consistent with what VIA has stated publically and in fact published in Vancouver Island's local paper, as being its alternative transportation policy on Vancouver Island.

[28] In order to avoid misunderstanding and confusion, VIA's VIANET system and bulletin should be consistent with what VIA has published locally in the Vancouver Island newspaper. Accordingly, VIA's VIANET system and bulletin should reflect that VIA will provide, at its expense, alternative taxi/van transportation to passengers who are unable to entrain or detrain due to restricted staff or lack of mechanical lifts for electric wheelchairs or scooters.

[29] Accordingly, the Agency finds that VIA has not yet complied with the requirements of Decision No. 366-AT-R-2003 dated June 19, 2003.

CONCLUSION

[30] In light of the foregoing, the Agency finds that the measures taken by VIA do not satisfy the requirements of Decision No. 366-AT-R-2003 dated June 19, 2003. Consequently, VIA is hereby required to take the following measures within thirty (30) days from the date of this Decision:

  1. Amend the information in the VIANET system to clearly reflect that on Vancouver Island, VIA will also provide alternative taxi/van transportation, at its expense, to passengers using manual wheelchairs who are unable to entrain and detrain due to restricted staff or lack of mechanical lifts; and provide a copy of the amended bulletin to the Agency.
  2. Advise the Agency on the measures it took to ensure that its reservation personnel, system-wide, are aware of this amendment.

[31] Following its review of the required material, the Agency will determine whether further action is required in this matter.

[32] VIA is reminded that the Agency is a quasi-judicial tribunal that makes decisions on a wide range of economic matters involving the federal transportation network (air, rail, and some ferry, and bus operations), and enjoys the powers, rights and privileges of a superior court to exercise its authority. Among its powers, the Agency can, pursuant to section 33 of the CTA, make a decision of the Agency an order of a Superior Court, which is enforceable in the same manner as such an order.

[33] Further, VIA's attention is drawn to Part VI of the CTA which authorizes the Agency to establish regulations in respect of the administrative monetary penalties program and to the Canadian Transportation Agency Designated Provisions Regulations, SOR/99-244, which provides that a contravention of a decision made pursuant to subsection 172 (3) of the CTA carries a level 5 penalty for which the maximum amount is $25,000.

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