Decision No. 82-AT-R-2005
February 15, 2005
IN THE MATTER OF Decision No. 473-AT-R-2004 dated August 30, 2004, which was a follow-up to Decision No. 479-AT-R-2002 dated August 28, 2002 - VIA Rail Canada Inc.
File No. U3570/94-1-1
BACKGROUND
[1] In its Decision No. 479-AT-R-2002 dated August 28, 2002 (hereinafter the Decision), the Canadian Transportation Agency (hereinafter the Agency) made a determination with respect to an application filed by Jean Lemonde, on behalf of Minikami (Club de mini Basket-ball en fauteuil roulant "Les Kamikazes"), concerning the assistance provided by VIA Rail Canada Inc. (hereinafter VIA) to a group of passengers using wheelchairs. The Agency found that VIA's Special Local and Joint Passenger Tariff No. 1, NTA 1 (hereinafter VIA's tariff), section 13-D, which imposed the presence of an attendant capable of assisting a person in a wheelchair to board and deboard at stations that have trained personnel and that are equipped with either high-level platforms or mechanical lifts; and section 13-D of VIA's tariff and VIA's policies and documents, to the extent that they are inconsistent or unclear, constituted undue obstacles to the mobility of persons with disabilities.
[2] Pursuant to the Decision, the Agency required VIA to revise section 13-D of its tariff to:
- clearly reflect that no attendant is required solely to assist a person in a wheelchair to entrain or detrain at its stations that are staffed and equipped with either high-level platforms or mechanical lifts;
- clarify the role of one or more attendants, including the terms and conditions of their carriage, and the role of VIA's personnel in the provision of entraining and detraining assistance, including the need for dialogue, at the stations that are:
- staffed but not equipped with either high-level platforms or mechanical lifts;
- not staffed and not equipped with either high-level platforms or mechanical lifts.
- clarify when and where alternative accessible transportation would be provided.
VIA was further required to review its publicly available documentation and policies and ensure that they are consistent with section 13-D of VIA's tariff, as amended.
[3] VIA was required to provide to the Agency, within ninety (90) days from the date of the Decision, a revised section 13-D of its tariff and a proposal on what steps VIA planned to take to ensure that its policies and publicly available documentation are consistent with this tariff.
Developments following the issuance of Decision No. 479-AT-R-2002
[4] On November 27, 2002, VIA filed its submission in response to the Decision.
[5] In Decision No. LET-AT-R-200-2003 dated September 30, 2003, the Agency determined that VIA's submission dated November 27, 2002, including its proposed amendments to its tariff, did not meet the requirements of the Decision. As such, the Agency directed VIA to comply with the requirements of the Decision within thirty (30) days from the date of Decision No. LET-AT-R-200-2003.
[6] VIA filed its response to Decision No. LET-AT-R-200-2003 on October 29, 2003, wherein it stated its agreement to arrange a meeting with Agency representatives for the purpose of discussing VIA's proposed revision to section 13-D of its tariff. On December 23, 2003, VIA requested an extension until February 28, 2004, to file its response and, by Decision No. LET-AT-R-260-2003 dated December 24, 2003, the Agency granted VIA's request.
[7] Personnel and counsel representatives from VIA and the Agency met in Montréal on January 15, 2004 to discuss the contents of VIA's tariff and the requirements of the Decision. At this meeting, VIA representatives announced that VIA no longer had a tariff in effect as it was of the opinion that it had no statutory obligation to have a passenger tariff, and that the corrective measures required by the Decision had, therefore, become moot.
[8] In Decision No. LET-AT-R-22-2004 dated January 23, 2004, the Agency rejected VIA's position that the corrective measures of the Decision had become moot and indicated that, as such, VIA's obligation to meet the requirements of the Decision remained in effect.
[9] In that same Decision, the Agency also required VIA to submit, pursuant to subsection 117(4) of the Canada Transportation Act, S.C., 1996, c. 10 (hereinafter the CTA), a complete copy of its tariff, with the exception of information relating solely to rates. VIA was requested to forward the copy of its tariff within five (5) days of its receipt of Decision No. LET-AT-R-22-2004.
[10] In its January 30, 2004 submission in response to Decision No. LET-AT-R-22-2004, VIA acknowledged that pursuant to subsection 117(1) of the CTA and to paragraph 2(f) of the Railway Traffic and Passenger Tariffs Regulations, SOR/96-338 (hereinafter the Regulations), it was obliged to publish its terms and conditions of carriage. VIA also included section 13 of its tariff.
[11] On February 9, 2004, the Agency issued Decision No. LET-AT-R-41-2004, in which it noted that VIA's January 30, 2004 response to Decision No. LET-AT-R-22-2004 did not include "a complete copy of its passenger tariff, with the exception of information relating solely to rates". As a result, the Agency directed VIA to submit a copy of its tariff, as previously requested, to the Agency within five (5) days of its receipt of Decision No. LET-AT-R-41-2004.
[12] In its February 13, 2004 response to Decision No. LET-AT-R-41-2004, VIA informed the Agency that it maintained all of its reservation information, policies and fares on a computer system called the "VIA Net System" (hereinafter VIANET). VIA also provided the Agency with excerpts from its electronic tariff, and requested an extension until April 30, 2004 to comply with the requirements of the Decision.
[13] In Decision No. LET-AT-A-61-2004 dated February 25, 2004, the Agency noted that while VIA had not provided a complete copy of its tariff as requested by Decision Nos. LET-AT-R-22-2004 and LET-AT-R-41-2004, the Agency was of the opinion that VIA had provided sufficient information in its two most recent submissions for the Agency to determine whether such information met the requirements of the Decision. The Agency further noted that the excerpts of VIA's tariff which VIA provided to the Agency reflected revision dates prior to the date of issuance of the Decision. The Agency also denied VIA's request for an extension until April 30, 2004, to comply with the requirements of the Decision. However, it did grant VIA an extension until March 5, 2004.
[14] In its March 3, 2004 response to Decision No. LET-AT-A-61-2004, VIA asserted that changes had been made to its tariff since the Decision had issued. VIA stated that it believed it had fully complied with the requirements of the Decision. VIA also stated that its tariff is now available in its electronic system and that, if the Agency wished to have "the entire CD with all of the links", VIA would agree to provide it to the Agency for its review.
[15] In Decision No. LET-AT-R-78-2004 dated March 17, 2004, the Agency reiterated that as the excerpts of VIA's tariff that VIA provided to the Agency had not been modified subsequent to the issuance of the Decision, the Agency was still not satisfied that VIA had made changes to the provisions of its tariff concerning the boarding and deboarding of passengers using wheelchairs since the issuance of the Decision. As VIA stated that it had fully complied with the requirements of the Decision, the Agency required VIA to demonstrate how it had complied, and to include copies of the specific sections or subsections of its tariff and terms and conditions of carriage in support of its argument, within five (5) days of receipt of Decision No. LET-AT-R-78-2004.
[16] On March 22, 2004, VIA requested an extension until March 26, 2004 to reply to Decision No. LET-AT-R-78-2004 and, by Decision No. LET-AT-R-83-2004, the Agency granted the requested extension.
[17] In its March 26, 2004 response to Decision No. LET-AT-R-78-2004, VIA stated that it had made changes to VIANET which put the obligation on VIA personnel to help the escort assisting the person with a disability to board and deboard. VIA provided further information regarding its submission that it had met the requirements of the Decision. VIA also provided the Agency with a copy of its tariff without information relating to rates.
[18] In Decision No. LET-AT-R-102-2004 dated April 8, 2004, the Agency informed VIA that it required additional information. Specifically, the Agency required VIA to provide VIANET in its entirety, in a usable format, with all the links, on CD. The Agency also required VIA to provide the "protocol setting out questions to be asked by those making reservations"; to which VIA referred in its March 26, 2004, submission as being the "best publicly available pieces of information". VIA was also to ensure, in light of paragraph 2(f) of the Regulations, that its tariff, as published with the Airline Tariff Publishing Company, Agent (hereinafter ATPCo), contains the terms and conditions of carriage, including those terms and conditions regarding the carriage of persons with disabilities, or an explanation, with references, of where the terms and conditions can be found.
[19] On April 20, 2004, VIA filed a copy of VIANET with the Agency. In Decision No. LET-AT-R-119-2004 dated April 28, 2004, the Agency required VIA to provide a copy of the protocol to which VIA referred in its March 26, 2004 submission, or an indication of where it could be found in VIANET, and on May 5, 2004, VIA personnel confirmed that the protocol is in fact contained in VIANET under the Train access to customers in wheelchairs policy.
Decision No. 473-AT-R-2004, which was a follow-up to Decision No. 479-AT-R-2002
[20] In its Decision No. 473-AT-R-2004 dated August 30, 2004, the Agency established that, as per information and requests from VIA in its submissions dated February 13, March 3 and 26, 2004, the Agency would consider VIANET as the tool through which any changes to the terms and conditions of carriage of VIA's tariff should be made instead of section 13-D of VIA's tariff. However, the Agency required VIA to amend its tariff as filed with ATPCo to include an explanation, with references, that the terms and conditions of carriage of persons with disabilities can be found in VIANET, in accordance with subsection 117(1) of the CTA and paragraph 2(f) of the Regulations.
[21] Regarding VIA's compliance with the aforementioned corrective measures of the Decision, in Decision No. 473-AT-R-2004, the Agency determined that VIA had not complied with corrective measures 1, 2(a) and 2(b) of the Decision; that it had complied with corrective measure 3; and that VIA's compliance with the fourth corrective measure would be addressed in a subsequent follow-up decision.
[22] Based on those findings, VIA was required to take the following action within thirty (30) days from the date of Decision No. 473-AT-R-2004:
- VIA must add to its tariff, as filed with ATPCo, an explanation specifying that the terms and conditions of carriage of persons with disabilities can be found in the VIANET computer reservation system. VIA is required to file with the Agency a copy of the section of its tariff that contains this amendment.
- With respect to stations that are staffed and equipped with either high-level platforms or mechanical lifts, VIA is required to amend VIANET to clearly reflect that it is the responsibility of VIA personnel to entrain and/or detrain persons with disabilities, regardless of whether such persons are travelling with a personal attendant.
- With respect to stations that are staffed but not equipped with either high-level platforms or mechanical lifts, VIA is required to:
- amend VIANET to clearly state that the primary responsibility for the provision of entraining and detraining assistance rests with its personnel, and that the attendant is to help VIA personnel in assisting the person with a disability to entrain/detrain;
- amend VIANET to require its personnel to specify, through dialogue with the person using a wheelchair, in addition to the availability of high-level platforms or mechanical lifts: the availability of alternate transportation; passenger/wheelchair weights; the circumstances where persons using wheelchairs should arrange to have friends/persons available to manually lift them on and off trains; the number of friends/persons required to manually lift the passenger on and off trains; and the terms and conditions of the friends/persons' carriage. Furthermore, VIA is required to make the determination of the number of friends/persons needed by the person using the wheelchair in order to help VIA personnel in assisting the person using the wheelchair to entrain/detrain by giving consideration to the number of VIA personnel available to provide entraining/detraining assistance and advising the person using the wheelchair of such.
- With respect to stations that are not staffed or equipped with either high-level platforms or mechanical lifts, VIA is required to amend VIANET to clarify that VIA will, through dialogue with the person with a disability, determine the number of friends/persons required to manually lift the passenger using a wheelchair on and off trains, and the terms and conditions of the friends/persons' carriage.
- VIA must ensure that its publicly available documentation and policies are uniform and consistent with VIANET, as amended.
- VIA must file a copy of the amended VIANET policies and a copy of its publicly available information regarding persons with disabilities with the Agency.
[23] Following a review of the measures taken by VIA, the Agency would determine whether further action was required.
[24] On November 12, 2004, VIA filed a submission addressing the matters raised in Decision No. 473-AT-R-2004.
ISSUE
[25] The issue to be addressed is whether the measures taken by VIA meet the requirements of Decision No. 473-AT-R-2004.
POSITION OF VIA
[26] VIA's November 12, 2004 submission states, in part, that:
Subject to a final review by its experts on tariffs, VIA Rail proposes to change the existing VIANET reservation system to amend the tariff by adding the following:
- VIA Rail has a limited number of stations equipped with high-level platforms or mechanical lifts. Where such facilities are available, VIA Rail is responsible for entraining and detraining persons with disabilities in the same manner that it is responsible for all passengers. No attendant is solely responsible for entraining and detraining a passenger with a disability. VIA Rail assumes this responsibility subject to limitations of size and weight of the persons and their equipment;
- Where there is no high-level platform or mechanical lift, VIA Rail has the primary responsibility for entraining and detraining passengers in the same manner that it is responsible for all passengers but the passenger with a disability must provide an escort or escorts capable of assisting the passenger in entraining and detraining. The nature and scope of this assistance and the resulting responsibility by VIA Rail employees will vary, depending upon a variety of conditions unique to each passenger with a disability and infrastructure constraints in VIA Rail's system;
- VIA Rail reservation agents will enter into a dialogue to identify the characteristics, limitations, number of escorts and terms and conditions of escorts travelling with a person with a disability. VIA Rail will assist persons with disabilities in determining the number of escorts or persons necessary to manually lift the passenger on and off a train and the number of VIA Rail personnel available to assist in such entrainment and detrainment; and
- Notwithstanding VIA Rail's existing policy of offering one free fare to an escort accompanying a passenger with a disability in certain circumstances, any additional persons needed to assist in the entrainment or detrainment of a passenger with a disability will be offered the best available fare.
[27] VIA's submission further states, in part, that "VIA Rail will ensure that any publicly available documentation and policies are [consistent] with the VIANET amendments."
ANALYSIS AND FINDINGS
First corrective measure
[28] The CTA contains, among others, provisions concerning a rail carrier's requirement to have and publish a passenger tariff where the carrier offers passenger services. Section 117 of the CTA states, in part, that:
(1) Subject to section 126, a railway company shall not charge a rate in respect of the movement of traffic or passengers unless the rate is set out in a tariff that has been issued and published in accordance with this Division and is in effect.
(2) The tariff must include any information that the Agency may prescribe by regulation.
(3) The railway company shall publish and either publicly display the tariff or make it available for public inspection at its offices.
(4) The railway company shall provide a copy of the tariff, or any portion of it, to any person who requests it and pays a fee not exceeding the cost of making the copy.
[29] As per subsection 117(2) of the CTA, the Agency made the Regulations which state, in part, that:
- The following information shall be included in every traffic or passenger tariff that is issued and published by a railway company under Part III of the Act:
...
(f) any terms and conditions of the tariff, including terms and conditions of the carriage of persons with disabilities, or an explanation, with references, of where the terms and conditions can be found;
...
[30] The Agency notes that VIA's tariff does not currently contain an explanation, with references, that the terms and conditions of carriage of persons with disabilities can be found in its VIANET system, as required by paragraph 2(f) of the Regulations. In light of the foregoing, the Agency finds that VIA has not complied with the first corrective measure of Decision No. 473-AT-R-2004.
Second corrective measure
[31] With respect to VIA's stations that are staffed and equipped with high-level platforms or mechanical lifts, the Agency notes that the proposed amendment to VIANET indicates that VIA is responsible for entraining and detraining persons with disabilities and that VIA assumes this responsibility subject to limitations regarding size and weight of persons and their mobility aids.
[32] In light of the foregoing, the Agency is of the opinion that VIA has met the second corrective measure of Decision No. 473-AT-R-2004.
Third corrective measure, part (a)
[33] The Agency notes that the proposed amendment to VIANET states that at VIA's stations that are staffed and not equipped with either high-level platforms or mechanical lifts, VIA has the primary responsibility for entraining and detraining passengers with disabilities and that the nature and scope of this assistance and the resulting responsibility by VIA employees will vary, depending upon a variety of conditions unique to each passenger with a disability and infrastructure constraints in VIA's system.
[34] In light of the foregoing, the Agency is of the opinion that VIA has met the third corrective measure, part (a), of Decision No. 473-AT-R-2004.
Third corrective measure, part (b), and fourth corrective measure
[35] The Agency notes that the proposed amendments to VIANET indicate that VIA agents will enter into a dialogue to identify the characteristics, limitations, number of escorts and terms and conditions of escorts travelling with persons with disabilities; that VIA will assist in determining the number of escorts or persons necessary to manually lift the passenger on and off the train and the number of VIA personnel available to assist in such entrainment and detrainment; and that, notwithstanding VIA's existing policy of offering one free fare to an escort accompanying passengers with disabilities in certain circumstances, any additional persons needed to assist in the entrainment or detrainment of passengers with disabilities will be offered the best available fare.
[36] In light of the foregoing, the Agency is of the opinion that VIA has met the third corrective measure, part (b), and the fourth corrective measure of Decision No. 473-AT-R-2004.
Fifth and sixth corrective measures
[37] While the Agency notes VIA's submission that "VIA Rail will ensure that any publicly available documentation and policies are [consistent] with the VIANET amendments ...", only once the proposed amendments to VIANET as discussed above are made, can VIA ensure that its publicly available documentation and policies are uniform and consistent with VIANET. Additionally, only once the proposed amendments to VIANET are made, will VIA be able to file a copy of the amended VIANET policies and a copy of its publicly available information regarding persons with disabilities with the Agency.
[38] In light of the foregoing, VIA has yet to comply with the fifth and sixth correctives measures.
[39] Upon completion of the proposed amendments to VIANET, VIA is required to file with the Agency a copy of the provisions as amended in addition to a copy of its publicly available information regarding persons with disabilities. With respect to the latter, to the extent that some of this information can be found on VIA's Web site, VIA should indicate such.
Additional comments from VIA
[40] The Agency notes the following statement in VIA's November 12, 2004 submission: "VIA Rail proposes to finalize the entire Tariff on VIANET containing the above amendments by November 30, 2004. These will come into effect on December 31, 2004, subject to VIA Rail's capacity to properly inform and train its agents in the reservation offices".
[41] In this regard, VIA's attention is drawn to section 2 of the Regulations, which states, in part, that:
The following information shall be included in every traffic or passenger tariff that is issued and published by a railway company under Part III of the Act:
(e) the date of issuance, of coming into force and of expiration of the tariff;
[42] As such, regarding the finalization of VIA's "entire Tariff on VIANET containing the above amendments", VIA must ensure that its tariff includes the date of issuance, of coming into force and of expiration of the proposed amendments to VIANET.
CONCLUSION
[43] The Agency has determined that with respect to the corrective measures set out in Decision No. 473-AT-R-2004:
- VIA has not complied with corrective measure 1;
- VIA has yet to comply with corrective measures 5 and 6, and;
- VIA has complied with corrective measures 2, 3(a), 3(b), and 4.
[44] VIA is, therefore, required to provide to the Agency, as soon as it is available, the following:
- a copy of the relevant excerpt from its tariff filed with ATPCo containing the required reference to VIANET;
- a copy of the amended VIANET policies and a copy of its publicly available information regarding persons with disabilities.
[45] If VIA files the above documentation, the Agency contemplates no further action in this matter.
- Date modified: