Decision No. 6-AT-R-2021

SUMMARY

[1] Louise Bark filed an application with the Canadian Transportation Agency (Agency) against VIA Rail concerning the removal of the wheelchair tie-down restraints (tie-downs) from VIA Rail’s passenger rail cars.

[2] Ms. Bark asks that the tie-downs be reinstated and that a method for wheelchair users using tie-downs be developed to allow them to communicate their need to access the toilet or other features in the passenger rail cars to VIA Rail personnel.

[3] The Agency will address the following issues:

1. Is Ms. Bark a person with a disability?
2. Did Ms. Bark face a barrier to her mobility?

[4] For the reasons set out below, the Agency finds that Ms. Bark is a person with a disability and that she did not face a barrier to her mobility. Accordingly, the Agency dismisses the application.

BACKGROUND

[5] Ms. Bark uses a power wheelchair and travels frequently from Cobourg, Ontario, to Toronto, Ontario, with VIA Rail. Ms. Bark states that VIA Rail removed the tie-downs from its passenger rail cars and that, since then, “people who use a wheelchair are no longer safe.” She claims that without the tie-downs, her power wheelchair “flops around” and the wheels come off the floor such that she is afraid of tipping over and experiencing more pain.

[6] Ms. Bark asserts that there are major safety concerns related to a power wheelchair not being tied down inside a moving vehicle. Ms. Bark claims that she has the “right to be both safe and comfortable when riding the train.”

[7] On March 19, 2020, the Agency issued Decision No. LET-AT-R-19-2020, opening pleadings. VIA Rail submitted its answer on April 14, 2020. Ms. Bark filed her reply on April 15, 2020.

[8] On April 17, 2020, VIA Rail objected to Ms. Bark’s reply, stating that it included new evidence. On June 4, 2020, the Agency issued Decision No. LET-AT-R-37-2020, which accepted Ms. Bark’s new evidence and placed it on the record, reopened pleadings and provided time for VIA Rail to submit its response to the new evidence.

[9] On June 11, 2020, VIA Rail submitted its answer to the new evidence, and Ms. Bark filed her reply on June 18, 2020.

THE LAW

[10] The application was filed pursuant to subsection 172(1) of the CTA, which reads as follows:

The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue barrier to the mobility of persons with disabilities.

[11] As stated in the Agency’s Decision No. 33-AT-A-2019 (Interpretive Decision) regarding accessibility-related applications, the Agency determines whether there is an undue barrier to the mobility of a person with a disability using a two-part approach:

Part 1: The onus is on the applicant to demonstrate, on a balance of probabilities, that:

- they have a disability. A disability is any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment—or a functional limitation—whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society;

and

- they faced a barrier. A barrier is anything—including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice—that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation. There needs to be some connection between the applicant’s disability and the barrier.

Part 2: If it is determined that an applicant has a disability and faced a barrier, the onus shifts to the respondent to either:

- explain, taking into account any proposals from the applicant, how it proposes to remove the barrier through a general modification to a rule, policy, practice, technology, physical structure, or anything else constituting a barrier, or, if a general modification is not feasible, an individual accommodation measure;

or

- demonstrate, on a balance of probabilities, that it cannot remove the barrier without experiencing undue hardship.

[12] The Agency will address the first part of the above two-part approach in this decision.

1. IS MS. BARK A PERSON WITH A DISABILITY? 

[13] Ms. Bark uses both a manual wheelchair and a power wheelchair. VIA Rail recognizes that Ms. Bark is a person with a disability. The Agency, therefore, finds that Ms. Bark is a person with a disability.

2. DID MS. BARK FACE A BARRIER TO HER MOBILITY? 

Positions of the parties

MS. BARK

Safety

[14] Ms. Bark submits that VIA Rail, supported by Transport Canada, removed the tie-downs in its trains and that, as a result, persons with disabilities who use wheelchairs are no longer safe. Ms. Bark claims that the trains “lurch badly” and that when her wheelchair is not tied down, the wheels of her wheelchair sometimes come off the floor. Ms. Bark asserts that she cannot relax or enjoy the ride and that she experiences pain when she is “bounced around” and her wheelchair is not secured.

[15] Ms. Bark claims that when a person remains in their wheelchair on the train, their wheelchair becomes a seat. She claims that all seats in the train are secured to the floor to keep them from “rocking” or becoming a projectile. Ms. Bark submits that as a person with a disability, she has the right to have equal protection and, for this reason, she requests that her wheelchair be “fastened to the floor of the train in a manner that is as safe as all the other seats in the train.” She asserts that, without these ties-downs, she is facing a barrier as the “rocking” of her wheelchair and the sensation of being in danger of tipping over is making it impossible for her to take the train.

[16] Ms. Bark adds that there are safety concerns to consider when “allowing a 400 lb power wheelchair to not be tied down inside a moving vehicle.” She claims that her power wheelchair could crush or kill someone if the train derails. Ms. Bark submits that crash tests have proven that it is dangerous to not secure loads and refers to a video on wheelchair transportation safety presented by the Rehabilitation Engineering Research Center. Ms. Bark also claims that a wheelchair can tip over quickly, as illustrated in a news video from September 2016 that she submitted with her application, showing a young girl in her wheelchair tipping over in a bus.

[17] To support her safety concerns, Ms. Bark refers to “Interventions Toward Ensuring Wheelchair Transportation Safety,” by the Constance-Lethbridge Rehabilitation Centre, dated October 13, 2017, and “Wheelchair Occupant Studies” by Lawrence W. Schneider et al., dated July 2016 which, according to Ms. Bark, “highlight the importance of properly securing a wheelchair on public transportation.”

[18] Ms. Bark also refers to three reports of the Transportation Safety Board (TSB) of Canada:

- The “Railway Occurrence Report R97H0009” (Biggar Report) regarding an incident that occurred on September 3, 1997, which, according to Ms. Bark, explains the dangers of loose objects in an accident, sets out weight limits and describes how to properly secure baggage. Ms. Bark wonders why, if baggage weighing less than her power wheelchair must be secured, a wheelchair can be unrestrained.

- The “Railway Investigation Report R99H0007” (Thamesville Report) regarding an incident that occurred on April 23, 1999, which, according to Ms. Bark, sets out concerns from investigators about the possibility that passengers seats could become loose in a derailment.

- The “Railway Investigation Report R12T0038” (Aldershot Report) regarding an incident that occurred on February 26, 2012, which, according to Ms. Bark, states that the passengers, luggage and other items that were not fastened in the train were tossed around and caused injuries. As well, she indicates that the wheelchair was determined to be properly secured with the tie-downs and remained in place. Ms. Bark asserts that it proves that the tie-downs are working as the wheelchair in this accident was prevented from moving when the passenger rail car tipped over.

[19] Ms. Bark references the Railway Passenger Car Inspection & Safety Rules, TC O-0-26 (Rules) and points out that section 25.4 states that “the securement of fixed passenger seating shall be designed to withstand a 5-g longitudinal, a 3-g lateral and vertical forces, with one 185 pounds (83.8 kg) passenger in each seat, without failure of seat attachments.” Ms. Bark wonders why, if the seats must be securely fixed to the floor, wheelchairs do not need to be secured.

[20] Further, Ms. Bark refers to sections 27.1 and 27.2 of the Rules. Those sections set out that overhead parcel and luggage racks shall be of the enclosed type or equipped with restraints and that heavy luggage storage shall be provided with adequate restraints. Ms. Bark points out that according to this, parcels and luggage must be secured.

[21] Ms. Bark also refers to section 29 of the Rules in full, which relates to passenger car accessibility for persons with disabilities. Section 29 includes the following provisions:

29.2 A passenger train with only one wheelchair tie-down should have priority storage space on the train for the personal wheelchair of a person who transfers to a passenger seat.

29.3 A passenger car with a wheelchair tie-down should have doorways that are wide enough to permit a person in a personal wheelchair to access the tie-down.

29.4 The location of the wheelchair tie-down should permit easy access to the wheelchair-accessible doorways and washroom.

[22] Ms. Bark points out that section 29 of the Rules consistently refers to tie-downs and therefore wonders why it was permitted that they be removed from the trains.

[23] Ms. Bark also refers to a report, filed by VIA Rail with its answer, entitled “Is the use of a tie-down securement necessary from a safety point of view?” prepared in 2014 for VIA Rail by Uwe Rutenberg (Rutenberg 2014 report), an international transportation consultant, and states that this report indicates:

The problem is that most manual and lightweight wheelchair frames are not built to withstand 8 g and in a crash may deform, crumble and some parts may become loose and become a projectile. Power chairs and scooters with stronger frames may be secured from becoming a projectile, but only if they have designated attachment points for the securement straps.

[24] Ms. Bark claims that many persons using power wheelchairs have designated attachment points and that the tie-down loops are labelled with the symbol to indicate WC-19 compliance.

[25] Ms. Bark indicates that she does not understand why the conclusion of that same report states:

Under regular operating conditions a tie-down securement will not increase the safety of the passenger in a mobility device. In a crash situation only power chairs and scooters may be secured from becoming a projectile. Manual, sport and lightweight chairs may disintegrate and parts may become a projectile. The passenger in a mobility device like any other seated passenger will not be protected.

[26] She submits that it appears that a decision was made to lump together all types of wheelchairs and because some are not safe, a recommendation was made to remove tie-downs.

[27] Ms. Bark also submits that not securing her wheelchair in a manner similar to the other seats in the train could be considered negligence if an accident occurs and someone is killed or injured. Ms. Bark supports her claim by referring to subsection 219(1) of the Criminal Code, RSC 1985, c C-46.

Swaying of the wheelchair

[28] Ms. Bark indicates that she sometimes had to use her own straps to stabilize her wheelchair and provides photos to demonstrate this. She asks that she be allowed to secure the top half of her wheelchair and claims that, in the past, she was able to add an extra strap to tie her wheelchair to the table or the rod beneath the window. She explains that a VIA Rail employee complained to the head office that it was a safety risk and that, since then, she cannot tie her power wheelchair to anything. Ms. Bark submits that she should not be prohibited from taking steps to secure herself. She also claims that she suggested to VIA Rail to install a handle like in GO trains.

[29] Further, Ms. Bark provides a document entitled “Alert,” which illustrates and explains how to secure her wheelchair. However, the source of the document is not identified.

[30] Ms. Bark submits an undated video of herself, onboard a VIA Rail train when her power wheelchair is not tied down. She claims that her power wheelchair is turned sideways in the video because it “flopped around” so much the other way that she was afraid of tipping over into the aisle. Ms. Bark also claims that it was less painful to sit facing sideways. Ms. Bark states that she was advised by VIA Rail that it was illegal to sit on the train facing sideways.

[31] Ms. Bark states that she travelled with VIA Rail on February 5, 2020, and that, for this particular trip, she was able to have her wheelchair tied down. She claims that during the trip, an engineer warned VIA Rail’s personnel that there was a “rough spot” coming up. Ms. Bark indicates that a VIA Rail employee held onto her wheelchair during that time. Ms. Bark also indicates that she was “tossed about” but that the tie-downs held her wheelchair’s wheels on the floor.

[32] Even though Ms. Bark gives examples of situations where she used the tie-downs, she also acknowledges that the tie-downs do not fully stop the swaying of her wheelchair when the train is in movement and indicates having informed VIA Rail of this.

Alternate accommodations

[33] Ms. Bark indicates that there is no other transportation option other than VIA Rail to go to Cobourg or to other cities to which she wants to travel. Ms. Bark states that in February 2020, she was still able to travel with the tie-downs on request but only if she was willing to modify her travel to select a time when VIA Rail was available to remove the caps off the metal strips designed to hold the tie-downs. She states that VIA Rail is removing the metal strips that hold the tie-downs and that once the metal strips are gone, she will be unable to ride the train safely. Ms. Bark adds that if it is not possible to remove the caps to expose the tie-downs on one of its trains, VIA Rail offers to pay for an accessible taxi to get Ms. Bark to her destination. However, Ms. Bark indicates that the taxi causes her other challenges. According to Ms. Bark, VIA Rail “either forgets to order the taxi or the taxi has scent deodorizers in it, which I am allergic to. When the accessible taxi option failed, I’m left with the choice of being stranded or taking the train with my wheelchair unsecured.”

[34] Ms. Bark states that her power wheelchair is more top-heavy than most and indicates that this design is to accommodate her disability, “not to add an optional frill.” She submits that it is not reasonable that she has to endure extra pain because of this need. She also submits that there must be a better way to accommodate a person who has a wheelchair that is more top-heavy than most.

VIA RAIL

[35] VIA Rail confirms that it removed the tie-downs between December 2018 and March 2019 and that all of its passenger rail cars are no longer equipped with tie-downs, and indicates that the new fleet planned to enter service in 2022 will not include tie-downs.

Definition of “tie-down”

[36] VIA Rail indicates that the Code of Practice: Passenger Rail Car Accessibility and Terms and Conditions (Rail Code) defines the term “tie-down” as “a space within which a mobility aid may be placed” and that the Rules define a “wheelchair tie-down” as “a space with restraints to accommodate an occupied personal wheelchair.” VIA Rail states that the Rules do not require passenger rail cars to be equipped with tie-downs, but rather that they contain requirements for passenger rail cars that do contain such tie-downs. VIA Rail acknowledges that the Rail Code contains expectations that all passenger rail cars will be equipped with tie-downs. However, VIA Rail states that, unlike the Rules, the notion of wheelchair tie-down in the Rail Code does not refer to restraints but rather to “a space to accommodate an occupied personal wheelchair.” VIA Rail submits that for the purpose of this case, the term “tie-down” means “a device that includes straps, anchors and special in-floor railings which allow for the physical attachment of a wheelchair or other mobility device to the floor of a passenger rail car by VIA staff.”

Regulations

[37] VIA Rail refers to the Accessible Transportation for Persons with Disabilities Regulations, SOR/2019-244 (ATPDR) that came into force on June 25, 2020, and states that they require mobility aid spaces for devices including wheelchairs in passenger rail cars but do not establish any requirements for the use of tie-downs. Further, VIA Rail submits that the ATPDR is replacing the Rail Code as indicated by the Agency in the backgrounder entitled “Accessible Transportation for Persons with Disabilities Regulations” that was published in July 2019.

[38] VIA Rail states that tie-downs to secure wheelchairs or other mobility devices are not used by the other intercity rail transportation providers in North America. VIA Rail states that prior to making the decision of removing the tie-downs, it commissioned two reports in order to learn more about the use of tie-downs in other jurisdictions: the Rutenberg 2014 report and a 2018 report entitled “Benchmarking: Safety for Passengers using Mobility Devices Onboard Trains” also prepared by Mr. Rutenberg (Rutenberg 2018 report). VIA Rail states that the Rutenberg 2018 report surveys the USA, Australia, the United Kingdom, the European Union (28 nations), South Africa, and Japan, and concludes that only in Japan are tie-downs required.

Factors taken into consideration for the removal of tie-downs

[39] VIA Rail asserts that the removal of the tie-downs was “carefully considered, was based on both scientific risk assessment and the rights and safety of passengers with and without disabilities and of VIA staff.” Further, VIA Rail asserts that its decision to remove the tie-downs was based on the following three factors:

(i) a risk assessment in respect of the safety of wheelchair travel with and without tie-downs;

(ii) the legal requirement, if any, to equip passenger railcars with tie-downs; and

(iii) input in respect of wheelchair securement devices from prominent organizations representing persons with disabilities in Canada.

[40] Regarding the first factor, VIA Rail indicates that the Rutenberg 2014 report states that tie-downs are not present in intercity train travel internationally and that:

during regular train operations longitudinal and latitudinal forces (that is, forces in the direction of travel or side-to-side, respectively) are so small that wheelchair movement is insignificant if its brakes are applied. Wheelchairs, power chairs and scooters are not built to withstand crash forces, and wheelchair frames are light and fragile. Power chairs do not have designated attachment points for a tie-down, and if tie-downs were applied to a crash situation then wheelchairs and power chairs would crumble or break and parts would become loose. Importantly, the report stated that ‘the passenger in a mobility device may feel more comfortable with a securement applied, but the securement will not add more protection under regular operating conditions’ [emphasis in original].

[41] VIA Rail states that a report made by a senior advisor of enterprise risk management at VIA Rail in regard to a risk assessment conducted by VIA Rail on September 25, 2018, makes it clear that the risk of a fatality due to the absence of tie-downs was approximately one occurrence in 307 years. VIA Rail also states that given that this risk is lower than that of fatalities due to other operating risks, such as food trolleys and luggage, the risk related to the absence of tie-downs was estimated as being acceptable in isolation. VIA Rail also indicated that the report also mentions the legal and human rights factors and documents that a group of VIA Rail personnel, including two union representatives, opted to remove tie-downs from VIA Rail’s passenger rail cars.

[42] With regard to the second factor, VIA Rail indicates that Canadian law does not require equipping passenger rail cars with tie-downs; therefore, it considers that it is not legally required to include tie-downs on its passenger rail cars.

[43] With respect to the third factor, VIA Rail indicates that it carried out consultations with subject matter experts and groups of concerned users—including Transport Canada, the Council of Canadians with Disabilities (CCD), the Rick Hansen Foundation and Kéroul—and that they all provided comments in favour of the change. VIA Rail states that, as per general approval of the organizations representing Canadians with disabilities, the removal of tie-downs enhances the mobility and dignity of passengers who use mobility aids while travelling with VIA Rail. VIA Rail submits that its conclusion following these consultations was that:

from a human rights standpoint, the concern for human dignity and for the improved unfettered mobility of disabled persons far outweighed any additional safety benefit that could be gained by the use of tie-downs in its cars. Use of tie downs often involved lower physical body contact with the passenger and VIA staff, inhibited passenger’s access to washrooms and their ability to reposition their device during travel and constituted an adverse effect on autonomy and an unwarranted obstacle to travel.

[44] Further, VIA Rail, in its answer, makes reference to the documentation presented by Ms. Bark in her application. In regard to the presentation entitled “Interventions Toward Ensuring Wheelchair Transportation Safety” and the news video submitted by Ms. Bark, VIA Rail claims that they pertain to risk related to unsecured wheelchairs aboard a motor vehicle and not passenger rail cars. VIA Rail submits that the risks differ between the two modes of transportation such that this evidence is irrelevant.

[45] With regard to the Biggar and Thamesville reports, VIA Rail indicates that although the two incidents are railway incidents, they do not involve mobility aids. VIA Rail asserts that the rules for fixed passenger seating in passenger rail cars are not the same for wheelchairs such that this evidence is irrelevant.

[46] With regard to the Aldershot Report, VIA Rail agrees that the accident did involve a person in a wheelchair. However, VIA Rail argues that the report does not indicate the benefit or detriment represented by the wheelchair tie-down itself such that Ms. Bark’s claim that the wheelchair would have become a “projectile” in the absence of tie-down is not supported by evidence.

[47] VIA Rail claims that Ms. Bark’s reference to the Criminal Code is irrelevant.

Testing with Ms. Bark

[48] VIA Rail indicates that it performed a test on a train from Toronto to Cobourg and back with Ms. Bark, an occupational therapist and Mr. Rutenberg on July 3, 2019. Ms. Bark used her power wheelchair for the Toronto to Cobourg segment and her manual wheelchair for the Cobourg to Toronto segment. Ms. Bark was seated in the direction of train travel. VIA Rail submits that the occupational therapist’s report following the testing concluded that “the ability to use tie-downs, or the option to use them, provides the Applicant with the reassurance that she is in charge of her own safety but does not serve to improve Applicant’s comfort or safety, nor does it prevent her from experiencing the pain and numbness.” Further, VIA Rail claims that the occupational therapist did not observe any instances where either mobility devices shifted position, broke contact with the floor, or appeared at risk of tipping during travel. VIA Rail indicates that the occupational therapist mentioned the instability of Ms. Bark when she is seated in her wheelchair because of the excessively large width of the seat and the fact that additions to her wheelchair increased her seated height. VIA Rail indicates that this report offers recommendations to Ms. Bark, which include “stopping the counterintuitive and counterproductive practice where she ‘frequently flails both arms in the air seeking something to grab on to for stability’” [emphasis in original], considering the replacement of the chair with one that fits properly, and considering the option of having a bar installed on the chair itself to improve her center of gravity when she has to travel on trains.

[49] VIA Rail states that Mr. Rutenberg’s report following the testing done on July 3, 2019 (Rutenberg 2019 report), indicates that in the case of the power wheelchair, some lateral movement (swaying) was observed, and it was determined that such movement was due to the design of the power wheelchair. Further, VIA Rail indicates that, according to this report, at no time was the power wheelchair in a position to tip sideways, forward or backward, nor was the safety compromised. The report concluded that tie-downs would not prevent the movements of the seat’s swaying because swaying was not caused by the train itself but rather by the power wheelchair design. The report also concluded that the swaying impacted only Ms. Bark’s comfort and not her safety. In respect of the segment for which Ms. Bark used her manual wheelchair, the report noted that the manual wheelchair did not sway like the power wheelchair did even where the train moved from side to side. In addition, at no time was the manual wheelchair in a position to tip sideways, forward or backward. The report concluded that for both segments the safety of the wheelchair and Ms. Bark was never compromised.

[50] VIA Rail indicates that during the testing with Ms. Bark on July 3, 2019, it was concluded that Ms. Bark has less discomfort and is safer when she sits in the direction of travel, as is required by law. VIA Rail indicates that further to this testing, it confirmed that tie-downs are not necessary for Ms. Bark or other persons with disabilities.

Swaying of the wheelchair

[51] VIA Rail refers to the “Alert” document submitted by Ms. Bark and asserts that the methods of securement of Ms. Bark’s power wheelchair in a motor vehicle do not contribute to the analysis of whether the absence of tie-downs on VIA Rail’s passenger rail cars constitutes a barrier. VIA Rail explains that it operates its passenger rail cars over a heavy rail network. It asserts that “the inertia, movements and behavior of a heavy rail train consist in motion is in no way comparable to those of a motor vehicle operating on city streets or highways.” Similarly, VIA Rail claims that the securing of a mobility device in transit buses may include the use of tie-downs but that this does not support the case that they are required in VIA Rail’s passenger rail cars.

[52] VIA Rail refers to the Rutenberg 2014 report, which indicates that “intercity trains with their large masses operate in a low g environment. They experience low accelerations and decelerations forces, travel on wide curves, and seldom experience panic breaks. There may be small lateral swaying forces left and right due to track conditions or elevated curves.”

[53] VIA Rail claims that the instruction contained in the document entitled “Alert” to attach the upper portion of Ms. Bark’s power wheelchair to a railing in a bus or on a GO train to eliminate back and forth movement of the upper portion of the power wheelchair supports the conclusion in the Rutenberg 2019 report that it is the high center of gravity of Ms. Bark’s particular power wheelchair that causes the swaying effect during train movement. VIA Rail claims that the report points out that the swaying effect would occur whether or not the power wheelchair is secured to the floor with tie-downs. VIA Rail indicates that this is confirmed by Ms. Bark as she said that the “swaying” problem existed even with the tie-downs. VIA Rail submits that this reinforces the fact that the difficulties encountered by Ms. Bark when travelling by train are not the result of the absence of tie-downs being applied to the lower portion of her power wheelchair.

[54] In regard to the video submitted by Ms. Bark showing her travelling on a VIA Rail train, VIA Rail states that she was sitting sideways and that this is not allowed as per legal requirements. VIA Rail indicates that the video shows that Ms. Bark’s power wheelchair is moving forward and backward, which creates discomfort for her.

Safety

[55] VIA Rail indicates that it has been in contact with Ms. Bark in regard to the removal of the tie-downs from its passenger rail cars and that it provided her with the assurance that tie-downs do not improve safety. VIA Rail acknowledges that Ms. Bark experiences fear and pain when travelling by train; however, VIA Rail is of the view that this is not the result of the removal of the tie-downs. VIA Rail recognizes that Ms. Bark was accustomed to the use of tie-downs, which may have provided psychological comfort, but VIA Rail also indicates that according to “scientific research, market benchmarking and the input of organizations representing persons with disabilities, … tie-downs do not increase her safety and will not remove her challenge of pain.”

[56] In light of the above, VIA Rail submits that the removal of the tie-downs does not constitute a barrier and requests that the application be dismissed.

ANALYSIS AND DETERMINATIONS

[57] For the purposes of this decision, the Agency will use the term “tie-down” to refer to the wheelchair tie-down restraints.

[58] Ms. Bark claims that when her wheelchair is not tied down, the wheels of her wheelchair sometimes come off the floor and that she is worried about her safety. She asserts that she cannot relax or enjoy the ride and that she experiences pain when her wheelchair is not secured. Ms. Bark essentially contends that tie-downs are the only accommodation that will allow her to travel safely with VIA Rail.

[59] The Agency recognizes that Ms. Bark feels insecure when travelling onboard VIA Rail trains because her wheelchair is not tied down as it used to be. Although Ms. Bark is not prevented from travelling with VIA Rail, she experiences a sense of insecurity when travelling. In certain circumstances, the Agency has previously found an obstacle—now known as a “barrier” following the changes to the CTA introduced by the Accessible Canada Act, SC 2019, c 10—in cases 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 discourage a person from future travel.

[60] However, when assessing a possible barrier to mobility that is related to safety concerns, such as the one raised by Ms. Bark, the Agency considers both the subjective experience of the person with a disability as well as the objective evidence on its record. In the case at hand, objective evidence exists in the form of the regulations applicable, the reports of the studies filed, and the reports from the testing done by VIA Rail with Ms. Bark.

[61] In terms of the regulations applicable, the Agency acknowledges that the Rules do not require passenger rail cars to be equipped with tie-downs. It also acknowledges that the ATPDR are the regulations in force since June 25, 2020. The ATPDR were developed as part of the Agency’s Regulatory Modernization Initiative (RMI) and built on its various accessibility instruments, as well as best practices in Canada and around the world. As part of the RMI, extensive consultations were conducted by the Agency between 2016 and 2018 to, among other things, understand the needs of persons with disabilities. The ATPDR reflect input received by the Agency from various stakeholders, including persons with disabilities, organizations representing persons with disabilities, industry, and members of the Agency’s Accessibility Advisory Committee. The ATPDR replaced the Rail Code and do not require that trains be equipped with tie-downs. As such, there are no regulations requiring VIA Rail to equip its passenger rail cars with tie-downs.

[62] As it relates to the reports referred to by Ms. Bark in support of her safety concerns, the information provided was not all directly relevant to travel by train in a wheelchair. For example, the data relating to securing wheelchairs in motor vehicles is not directly applicable as the requirements to travel with a wheelchair by train and in a motor vehicle are very different. Further, while Ms. Bark referred to three reports from the TSB, these three incidents have little application to Ms. Bark’s situation. The incidents in the Biggar and Thamesville reports do not involve mobility aids. With regard to the Aldershot Report, while the incident did involve a person in a wheelchair, it did not indicate the benefit or detriment represented by the tie-down itself. In other words, the Aldershot Report does not conclude that the use of tie-downs is required—or increases safety—while travelling by train.

[63] VIA Rail demonstrated that, before it made the decision to remove the tie-downs from its passenger rail cars, it took several steps to assess the situation:

• it verified that no laws or regulations required tie-downs in passengers rail cars;
• it conducted a risk assessment, which revealed that the risk of a fatality due to the absence of tie-downs was approximately one occurrence in 307 years, which was found to be acceptable;
• it conducted work sessions with groups representing passengers affected by the removal of the tie-downs, including Transport Canada, the CCD, the Rick Hansen Foundation and Kéroul, and all of whom provided comments in favour of the removal of the tie-downs as it enhances the mobility and dignity of the passengers; and
• it commissioned two reports with Mr. Rutenberg, an external and well-recognized international transportation consultant, industrial engineer and disability advisor, in order to learn more about the use of tie-downs, which determined, among other things, that tie-downs are not required by law in the USA, Australia, the United Kingdom, the European Union (28 nations) and South Africa but are required in Japan.

[64] VIA Rail also demonstrated that it took steps to address Ms. Bark’s personal concerns by engaging in discussions with her and by conducting a test with her on July 3, 2019. The Agency notes that the test, which was conducted with the help of an occupational therapist and Mr. Rutenberg, demonstrates that the safety of the wheelchair and Ms. Bark were never compromised. More specifically, the occupational therapist’s report following the testing concluded that the use of tie-downs reassures Ms. Bark but does not improve her safety and does not prevent her from having pain and numbness. Also, the Rutenberg 2019 report concludes that tie-downs would not prevent Ms. Bark’s wheelchair from swaying because swaying is not caused by the train itself but rather by the power wheelchair’s design, namely, the large width of the seat and the fact that additions to her wheelchair increased her seated height.

[65] When Ms. Bark did testing with VIA Rail on July 3, 2019, she was sitting in the direction of train travel and, according to both reports following the testing, at no time was her power wheelchair or her manual wheelchair in a position to tip sideways, forward or backward, nor was safety compromised.

[66] The Agency also notes that both the occupational therapist report and the Rutenberg 2019 report offered suggestions to Ms. Bark as measures that she can take personally to address her feelings of insecurity. VIA Rail indicates that both reports offer recommendations to Ms. Bark which include keeping her arms close to her body to lower her center of gravity when travelling in her wheelchair, considering the replacement of her wheelchair to lower its height, and considering the option of having a bar installed on the wheelchair itself to improve her center of gravity.

[67] Having considered both Ms. Bark’s subjective experience as well as the objective evidence available on file, the Agency finds that Ms. Bark did not demonstrate that her safety is at risk when travelling onboard VIA Rail trains without tie-downs. Ms. Bark’s subjective feelings are important, and passengers with disabilities should be able to feel safe while travelling. However, VIA Rail has offered practical solutions for Ms. Bark to address these concerns so that she can feel safe while travelling. Given that there are steps that Ms. Bark can take to address her subjective concerns, and given that the objective evidence establishes that her safety is not compromised by the removal of the tie-downs, the Agency finds that the lack of tie-downs does not represent a barrier to her mobility. Therefore, the Agency finds that Ms. Bark did not meet her burden of proof to demonstrate that she faced a barrier to her mobility.

CONCLUSION

[68] The Agency dismisses the application.