Decision No. 564-AT-R-2004
Follow-up - Decision No. 11-AT-R-2005
October 25, 2004
File No. U3570/03-44
BACKGROUND
[1] In its Decision No. 183-AT-R-2004 dated April 6, 2004 (hereinafter the Decision), the Canadian Transportation Agency (hereinafter the Agency) made a determination with respect to an application filed by John Benjamin concerning the level of assistance that VIA Rail Canada Inc. (hereinafter VIA) provided to him on a round trip between Ottawa, Ontario, and Québec, Quebec, via Montréal, Quebec, on October 6 and on October 10, 2003.
[2] The Agency determined that the level of assistance that VIA provided to Mr. Benjamin, at various instances during his round trip, constituted an undue obstacle to his mobility. Pursuant to the Decision, the Agency directed VIA to take the following corrective measures within thirty (30) days from the date of the Decision:
- Forward a written apology directly to Mr. Benjamin, in an electronic format, with respect to his travel experience and provide a copy of the apology to the Agency;
- Provide a written copy of the Agency's decision to VIA's service managers and to the train and station personnel on duty in Ottawa, Montréal and Québec on October 6 and 10, 2003 and provide written confirmation of such to the Agency;
- Issue a bulletin to its agents, service managers, train and station personnel as well as train employees highlighting the incident experienced by Mr. Benjamin, without identifying his name, and emphasizing the importance of providing services requested and maintaining appropriate levels of awareness and sensitivity to the particular needs of travellers with disabilities. In addition, the bulletin shall reinforce the importance of following the carrier's policies and procedures with respect to the provision of services to a passenger with a disability;
- Provide the Agency with a copy of the bulletin, as issued;
- Report to the Agency on what policies and procedures have been developed to prevent a recurrence of the situation experienced by Mr. Benjamin;
- Create and implement additional Special Services Request codes (hereinafter SSR codes) to denote specific services requested by persons with disabilities, particularly with respect to boarding assistance at all stations, assistance with detraining, as well as connections and provide written confirmation of such to the Agency;
- Describe, in detail, what steps will be taken to ensure that requests for specific services made by persons with disabilities, as communicated to VIA, are completely and accurately reflected in VIA's records, including the Passenger Name Record (hereinafter the PNR), passenger manifest and tickets, in order that its service manager and train and station personnel are in a position to know the specifics of such requests to ensure that the needs of passengers with disabilities will be met; and
- Incorporate this incident into its corporate training program, so as to ensure that similar incidents do not occur in the future, and provide the Agency with a modified training module.
[3] VIA was also ordered to provide refresher training to VIA's service managers and to the train and station personnel including those on duty in Ottawa, Montréal and Québec on October 6 and 10, 2003 in respect of persons with disabilities and the kind of assistance required, with particular emphasis on the services required to accommodate the needs of persons who are blind. The Decision also required VIA to provide a schedule with respect to conducting employee training within thirty (30) days from the date of the Decision.
[4] On May 4, 2004, VIA requested an extension until May 21, 2004 to meet the requirements of the Decision. By Decision No. LET-AT-R-131-2004 dated May 6, 2004, the Agency granted the extension and, on May 14, 2004, VIA filed its response to the Decision. Additional information was requested from VIA on June 29, July 9, 13, 14 and 16, 2004. On July 23, 2004, VIA filed further information as requested.
ISSUE
[5] The issue to be addressed is whether the measures taken by VIA meet the requirements of the Decision.
PRELIMINARY MATTER
[6] The Agency notes that VIA's submission states, in part, that:
VIA Rail does not accept the Agency's practice of rendering a decision and retaining jurisdiction. In the interests of finality and to avoid burdensome regulation imposed upon the Railway, VIA informs the Agency that it will no longer accept any jurisdiction which has no end.
In the end, VIA indicates that once VIA has participated in the process and accepted the decision of the Agency, the jurisdiction to consider further action is ended.
[7] 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.
[8] 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 Canada Transportation Act, S.C., 1996, c. 10 (hereinafter 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".
[9] The Agency is of the opinion that VIA's argument that the Agency does not have the power to continue the proceedings is without merit and, accordingly, the Agency concludes that it has the power to supervise the implementation of its corrective measures.
POSITION OF VIA
[10] VIA provided the Agency with a copy of a letter of apology dated May 4, 2004, which VIA forwarded to Mr. Benjamin, in electronic format, wherein VIA apologized for the poor service Mr. Benjamin received; emphasized VIA's expectations of its personnel regarding the services to be provided to VIA's customers; briefly described the training its personnel receives with respect to persons with disabilities; and offered a refund of the ticket purchased for Mr. Benjamin's trip.
[11] VIA also provided the Agency with a copy of a list of the service managers and train and station personnel on duty in Ottawa, Montréal and Québec on October 6 and 10, 2003, confirming to which of its personnel VIA provided copies of the Decision and the dates on which this was done. Where employees were on leave, it was noted that a copy of the Decision would be provided to them upon their return to work.
[12] VIA provided a copy of a communiqué issued on May 3, 2004 to its "front-line personnel". The communiqué highlights the incident experienced by Mr. Benjamin without identifying him, including a summary of the main areas where assistance was not provided. VIA further notes that the communiqué was sent to VIA's agents, service managers, and train and station personnel.
[13] The communiqué reinforces the importance of following VIA's policies and procedures with respect to the provision of services to persons with disabilities and emphasizes the importance of providing services requested and maintaining appropriate levels of awareness of the needs of persons with disabilities. The communiqué provides tips and information relating to communicating and interacting with persons with disabilities and advises that personnel will continue to receive refresher training for assisting persons with visual impairments. It also emphasizes the need to ensure that passengers are informed of what services are available and that personnel insert informative SSR codes in the PNR. Furthermore, the communiqué informs personnel that VIA will be revising its guidelines and procedures and that telephone sales office personnel will be kept informed. The communiqué sets out certain guidelines that VIA personnel should follow, pending the revisions to VIA's guidelines and procedures. These address: greeting the passenger; explaining the location of waiting and boarding areas without pointing; providing escort assistance to locations such as waiting and boarding areas and to the passenger's seat; making further inquiries (i.e. menus, washrooms); offering assistance with baggage; and providing these services prior to and during boarding and upon arrival at destination stations. The communiqué also provides information regarding assisting a person with a visual impairment, including appropriate dialogue; information on guiding persons with visual impairments; basic information on visual impairments; definitions of blindness; mobility aids (white canes); and service animals. The communiqué states that additional SSR codes will be added to VIA's reservation system (hereinafter VIANET) and printed manifests to further clarify a person's needs.
[14] VIA provided a copy of an internal Memorandum dated May 4, 2004, setting out the policies and procedures that have been developed and the steps that have been and will be taken in accordance with the Decision. Specifically, it is stated therein that VIA's training program has been modified with specific elements pertaining to persons with visual impairments, including a case study addressing the incident in order to increase the awareness of all frontline personnel and that a system-wide bulletin (the communiqué referred to above) has been sent to all frontline personnel informing them of such. The Memorandum indicates that two new SSR codes have been created to address the specific needs of passengers requiring detraining assistance (DTRN) or assistance when connecting trains (CTRN), respectively, and that a bulletin will issue by May 7, 2004, to all frontline personnel explaining the reasons for the new codes and when to use them.
[15] The Memorandum also states, in part, that:
... the service failures incurred during Mr. Benjamin's trip [were] not as a result of a lack of SSRs or info as all the information on the assistance required had been documented. The failure came as a result of not executing/providing the services required on the part of those who were on duty.
[16] The Memorandum specifies that information has been provided to frontline personnel--telephone sales office and counter sales agents--who are involved in identifying and confirming the needs of persons with disabilities on the creation of the new SSR codes and of the importance of documenting the needs of passengers with disabilities. The memorandum also states that arrangements are being made with the training department to ensure that all employees who were on duty during Mr. Benjamin's trip receive refresher training, which will begin in early June and will be completed by August 31, 2004. In its additional comments filed on July 23, 2004, VIA states, in part, that:
Every employee who deals with passengers with disabilities, employed by VIA Rail, must take a training program every three years. This training program was inspected in the winter of 2003 by Mr. Laliberté, an officer of the Canadian Transportation Agency, employed in Montréal. He reviewed the program and found it to be more than satisfactory.
[17] VIA also included a copy of the material used in its training course, entitled Providing Service to Customer[s] with Disabilities: Participant Guide, which addresses, among other subjects, visual impairments, including definitions and types of visual impairments; the prevalence of visual impairments; assistance for persons with visual impairments (i.e., guidance, lighting, service animals, etc.); anatomy of the eye; aids used by persons with visual impairments; and the addition of a case study of the incident experienced by Mr. Benjamin, without revealing his identity. VIA's submission further states that all instructors at VIA have been directed to use the new version of the participant's guide as of April 21, 2004.
ANALYSIS AND FINDINGS
[18] The Agency has reviewed all of the information filed in response to the Decision.
[19] The Agency notes that VIA sent a letter of apology to Mr. Benjamin, via electronic format, with respect to his travel experience. The Agency also acknowledges that VIA provided Mr. Benjamin a refund for the trip in question as a gesture of goodwill. Furthermore, the Agency acknowledges VIA's confirmation that it has provided copies of the Decision to VIA's service managers and to the train and station personnel on duty in Ottawa, Montréal and Québec on October 6 and 10, 2003.
[20] The Agency also notes that VIA sent a communiqué to its frontline personnel, agents, service managers, train and station personnel, which highlights the incident experienced by Mr. Benjamin, without identifying him. The Agency is satisfied that the information contained therein emphasizes the importance of providing services requested and maintaining appropriate levels of awareness and sensitivity to the particular needs of travellers with disabilities and reinforces the importance of following the carrier's policies and procedures with respect to the provision of services to a passenger with a disability.
[21] The Agency further notes that VIA will be revising its guidelines and procedures and that, in the meantime, it has set out guidelines for personnel to follow regarding interaction with persons with visual impairments, including dialogue, assistance, procedures during entraining, detraining and connections, baggage assistance and emergency situations, and that it has created additional SSR codes, as addressed below.
[22] With respect to the creation of new SSR codes, the Agency notes that VIA has created two new SSR codes--DTRN and CTRN--to address the specific needs of passengers requiring detraining assistance or assistance when boarding connecting trains.
[23] The Agency also acknowledges VIA's position that its personnel's failure to provide pre-boarding assistance was not a result of the lack of an SSR code or information on the assistance required, but, rather, was a result of personnel's failure to provide the service requested. As such, the Agency accepts that no new SSR code has been created for pre-boarding assistance. The Agency further notes that information involved in identifying and confirming the needs of persons with disabilities has been provided to frontline personnel (telephone sales office and counter sales agents). In terms of the steps taken to ensure that requests for specific services made by persons with disabilities, as communicated with VIA, are completely and accurately reflected in VIA's records, including the PNR, manifests and tickets, VIA indicated that it issued a communiqué to frontline personnel to inform personnel that VIA will be revising its guidelines and procedures and that telephone sales office personnel will be kept informed and that a bulletin will be issued on May 7, 2004 to all frontline personnel explaining the reasons for the new codes and when to use them. As such the Agency is satisfied that VIA has taken steps to ensure that requests as communicated with VIA are completely and accurately reflected in VIA's records.
[24] The Agency notes that VIA has made changes to its training program for dealing with persons with disabilities by incorporating a case study of the incident experienced by Mr. Benjamin, without identifying him. The case study includes a review and discussion of the incident, as well as discussion as to what measures could have prevented the difficulties experienced. The Agency is therefore satisfied that VIA has incorporated the incident into its corporate training program.
[25] Concerning the provision of refresher training to VIA personnel, the related corrective measure, as set out in paragraph 51 of the Decision, states that:
VIA is also ordered to provide refresher training to VIA's service managers and to the train and station personnel including those on duty in Ottawa, Montréal and Québec on October 6 and 10, 2003 in respect of persons with disabilities and the kind of assistance required, with particular emphasis on the services required to accommodate the needs of persons who are blind. VIA is required to provide a schedule with respect to conducting employee training within thirty (30) days from the date of this Decision.
[26] The Agency points out that in determining that an obstacle to the mobility of a person with a disability is undue, the Agency makes a finding that, on balance, the obstacle is not justified and must be eliminated and, therefore, orders that the obstacle be remedied and/or that compensation be paid for expenses directly resulting from the undue obstacle. Furthermore, when the Agency orders corrective measures, the respondent must address and remedy, on a timely basis, the undue obstacles to the mobility of persons with disabilities.
[27] Having determined that the level of assistance provided to Mr. Benjamin by VIA personnel constituted an undue obstacle to his mobility, the Agency ordered, as noted above, and among other corrective measures, that VIA provide refresher training, not only to its personnel on duty at the stations in Ottawa, Montréal and Québec on October 6 and 10, 2003, but to all of its service managers and train and station personnel, and that VIA provide a schedule for such training. The Agency is of the opinion that in light of the number of different personnel and stations involved, the requirement for refresher training appropriately applies to all of VIA's service managers and train and station personnel to ensure that incidents similar to those experienced by Mr. Benjamin do not recur.
[28] The Agency notes that arrangements were made with VIA's training department to ensure that refresher training will be provided to the service managers and train and station personnel on duty at the Ottawa, Montréal and Québec stations during Mr. Benjamin's travel on October 6 and 10, 2003, by August 2004 and, in this regard, the Agency contemplates no further action.
[29] However, concerning the provision of training for the remainder of its service managers and train and station personnel, VIA simply refers to its policy regarding the provision of training to employees who interact with passengers with disabilities. Specifically, in its additional comments filed on July 23, 2004, VIA states, in part, that:
Every employee who deals with passengers with disabilities, employed by VIA Rail, must take a training program every three years. This training program was inspected in the winter of 2003 by Mr. Laliberté, an officer of the Canadian Transportation Agency, employed in Montréal. He reviewed the program and found it to be more than satisfactory.
[30] The Agency notes VIA's reference to the review of its training program for persons with disabilities by an enforcement officer designated by the Agency pursuant to paragraph 178(1)(a) of the CTA. It is important to note that this inspection was carried out as part of the monitoring of transportation service providers' compliance with the Personnel Training for the Assistance of Persons with Disabilities Regulations, SOR/94-42 (hereinafter the Regulations) by the Enforcement Division of the Agency. Any such inspection has no bearing on the Agency's mandate to investigate complaints and order corrective measures where applicable.
[31] With respect to the requirement that VIA provide a schedule, the Agency notes that VIA has not complied with this requirement. In this regard, the Agency is of the opinion that the additional comments filed by VIA do not satisfy the requirement of the Decision for VIA to provide a schedule with respect to conducting employee training for the remainder of its service managers and train and station personnel. Furthermore, the Agency notes that according to the Black's Law Dictionary, "schedule" is defined as "any list of planned events to take place on a regular basis such as a train schedule or a schedule of work to be performed in a factory." The Agency also notes that according to the Merriam-Webster Dictionary, schedule is defined as "a written or printed list, catalog or inventory; a procedural plan that indicates the time and sequence of each operation". Applying this common understanding of what constitutes a schedule, the Agency is of the opinion that the basic elements of a schedule regarding training of employees would include either the names of the employees to receive the training or at least the employee groups targeted for the training and the anticipated dates for the training. The Agency is of the view that VIA has not provided a schedule that includes the above information with respect to training for the remainder of its service managers and train and station personnel. As such, the Agency concludes that VIA should provide a schedule for the remainder of its employees with its basic elements, i.e., either the names of the employees to receive the training or at least the employee groups targeted for the training and the anticipated dates for the training.
[32] With respect to the implementation of corrective measures such as the provision of refresher training, the Agency is of the opinion that, as a corrective measure is ordered to remedy an undue obstacle to persons with disabilities, the implementation of a corrective measure must occur within a period of time which will not unreasonably delay the removal of the undue obstacle; otherwise the undue obstacle that the corrective measure is intended to remedy persists with the likelihood that persons with disabilities will continue to encounter similar undue obstacles. Accordingly, in filing a schedule which responds to the corrective measure set out in the Decision regarding refresher training to the remainder of its service managers and train and station personnel, the Agency urges VIA to pay due regard to the importance of timeliness.
[33] Concerning VIA's training, the Agency addressed this issue in the Decision, as follows:
The Agency is also concerned with the manner in which Mr. Benjamin was treated, in particular when VIA's personnel at various instances indicated the location of the pre-boarding and baggage retrieval areas by pointing in response to requests for assistance. This kind of assistance is clearly inappropriate for a person who is blind and who uses a white cane. The Agency is of the opinion that this is indicative of a lack of training with respect to the services required by persons who are blind. In light of this, the Agency finds it appropriate for VIA to provide refresher training in respect of the services required by persons who are blind and to expand its training module in this respect.
[34] The Agency, therefore, required VIA, among other corrective measures, to incorporate the incident into its corporate training program.
[35] As previously noted, VIA has made changes to its training program for dealing with persons with disabilities incorporating the incident which should prevent difficulties similar to those experienced by Mr. Benjamin from recurring in the future. Furthermore, the refresher training was in respect of persons with disabilities with particular emphasis on the services required to accommodate the needs of persons who are blind. However, the Agency notes that VIA's enhanced training program for dealing with persons with disabilities is of limited value if VIA does not provide refresher training to the remainder of its service managers and train and station personnel in the near future, using its revised training program.
CONCLUSION
[36] In light of the foregoing, the Agency finds that VIA has complied with the first eight corrective measures of the Decision which required VIA to:
- Forward a written apology directly to Mr. Benjamin, in an electronic format, with respect to his travel experience and provide a copy of the apology to the Agency;
- Provide a written copy of the Agency's decision to VIA's service managers and to the train and station personnel on duty in Ottawa, Montréal and Québec on October 6 and 10, 2003 and provide written confirmation of such to the Agency;
- Issue a bulletin to its agents, service managers, train and station personnel as well as train employees highlighting the incident experienced by Mr. Benjamin, without identifying his name, and emphasizing the importance of providing services requested and maintaining appropriate levels of awareness and sensitivity to the particular needs of travellers with disabilities. In addition, the bulletin shall reinforce the importance of following the carrier's policies and procedures with respect to the provision of services to a passenger with a disability;
- Provide the Agency with a copy of the bulletin, as issued;
- Report to the Agency on what policies and procedures have been developed to prevent a recurrence of the situation experienced by Mr. Benjamin;
- Create and implement additional SSR codes to denote specific services requested by persons with disabilities, particularly with respect to boarding assistance at all stations, assistance with detraining, as well as connections and provide written confirmation of such to the Agency;
- Describe, in detail, what steps will be taken to ensure that requests for specific services made by persons with disabilities, as communicated to VIA, are completely and accurately reflected in VIA's records, including the PNR, passenger manifest and tickets, in order that its service manager and train and station personnel are in a position to know the specifics of such requests to ensure that the needs of passengers with disabilities will be met; and
- Incorporate this incident into its corporate training program, so as to ensure that similar incidents do not occur in the future, and provide the Agency with a modified training module.
[37] Accordingly, the Agency does not contemplate any further action regarding these corrective measures.
[38] However, as VIA provided the Agency with a schedule of when it will provide refresher training to its service managers and to its train and station personnel on duty in Ottawa, Montréal and Québec on October 6 and 10, 2003, but did not provide a schedule of when it will provide refresher training to the remainder of its service managers and train and station personnel, the Agency finds that VIA has not fully complied with the ninth and last corrective measure of the Decision, which required VIA to:
- provide refresher training to VIA's service managers and to the train and station personnel including those on duty in Ottawa, Montréal and Québec on October 6 and 10, 2003 in respect of persons with disabilities and the kind of assistance required, with particular emphasis on the services required to accommodate the needs of persons who are blind. The Decision also required VIA to provide a schedule with respect to conducting employee training within thirty (30) days from the date of the Decision.
[39] Accordingly, VIA is hereby required to provide a schedule regarding training for the remainder of its employees with basic elements, i.e., either the names of the employees to receive the training or at least the employee groups targeted for the training and the anticipated dates for the training within thirty (30) days from the date of this Decision. VIA is again reminded to pay due regard to the importance of timeliness.
[40] Following a review of the required information, the Agency will determine whether further action is required.
- Date modified: