Decision No. 97-AT-MV-2002
February 28, 2002
APPLICATIONS by Edouard Conrad Kyer, Imelda Beauregard and Line Potvin pursuant to subsection 172(1) of the Canada Transportation Act, S.C., 1996, c. 10, concerning the difficulties they encountered with respect to the accessibility of the paratransit services provided by the Société de transport de l'Outaouais.
File Nos. U3570/98-16
U3570/98-22
U3570/98-35
APPLICATIONS
Edouard Conrad Kyer
On August 7, 1998, Mrs. Kyer filed on behalf of her husband, Edouard Conrad Kyer, an application with the Canadian Transportation Agency (hereinafter the Agency) with respect to the matter set out in the title. The Société de transport de l'Outaouais (hereinafter the STO) filed its answer to the application on October 1, 1998, and Mrs. Kyer replied to the answer by letter dated October 8, 1998. The STO submitted additional information on November 6, 1998. Mr. Kyer has emphysema and angina pectoris and uses a wheelchair to travel.
Imelda Beauregard
On September 11, 1998, Imelda Beauregard filed an application with the Agency with respect to the matter set out in the title. The STO filed its answer to the application on October 1, 1998, and Mrs. Beauregard replied to the answer on November 4, 1998. The STO submitted additional comments on November 12, 1998. Ms. Beauregard is a bilateral amputee and is a wheelchair user.
Line Potvin
On November 20, 1998, Line Potvin filed an application with the Agency with respect to the matter set out in the title. The STO filed its answer to the application on February 1, 1999, and Mrs. Potvin replied to the answer on February 8, 1999. Mrs. Potvin has a severe bifida thoracolumbar scoliosis condition and uses a three-wheeled power scooter.
Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an indefinite extension of the deadline.
AGENCY'S JURISDICTION
Pursuant to the provisions of the CTA relating to the transportation of persons with disabilities, the Agency may make regulations and inquire into any matter that it deems appropriate for the purpose of eliminating undue obstacles in "the transportation network under the legislative authority of Parliament".
By virtue of subsection 91(29) and paragraph 92(10)(a) of the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U. K.), the legislative authority of Parliament extends to undertakings operating extra-provincial transportation services, including paratransit services provided by bus.
As part of its public transit system, the STO provides interprovincial services, which fall under the purview of the legislative authority of Parliament. Accordingly, the STO is subject to the Agency's jurisdiction, and more particularly, to the provisions of the CTA relating to the transportation of persons with disabilities.
PRELIMINARY MATTERS
After consideration of all of the evidence contained in Mr. Kyer's and Mrs. Beauregard's applications, the Agency, in its Decision No. LET-AT-MV-298-1998 dated November 13, 1998, determined that a more thorough analysis of the paratransit services provided by the STO was required to enable it to make its decision.
In letters dated January 25 and 27, 1999, the Agency advised the parties of record of its intention to process the three applications jointly because of their similarity and to obtain the services of a consultant in public transit and paratransit.
In a letter dated June 18, 1999, Agency staff informed the parties of record that the Agency had retained the services of Michel Boucher, an economist and professor of economics at the École nationale d'administration publique, to conduct the analysis of the paratransit services provided by the STO and the effectiveness of the STO's management of these services. The final report prepared by Mr. Boucher was filed with the Agency on December 19, 1999 and was forwarded to the parties for comments on January 24, 2000. Mrs. Beauregard submitted comments with the Agency on February 8 and the STO also filed comments on March 2, 2000.
Pursuant to a request by Agency staff on May 12, 2000, the STO submitted further information on June 19 and July 24, 2000.
ISSUES
Edouard Conrad Kyer and Imelda Beauregard
The issue to be addressed is whether the reservation procedure introduced by the STO for occasional trips for non-recurring health care constituted an undue obstacle to Mr. Kyer's and Mrs. Beauregard's mobility, and, if so, what corrective measures should be taken.
Line Potvin
The issues to be addressed are:
- whether the time required for Mrs. Potvin to make the journey back from her work to her home, as part of her regular trips, constituted an undue obstacle to her mobility, and, if so, what corrective measures should be taken; and
- whether the STO's refusal to classify Mrs. Potvin's weekly trips for her second job as regular trips constituted an undue obstacle to her mobility, and, if so, what corrective measures should be taken.
FACTS
In 1978, the Gouvernement du Québec passed the Act to secure the handicapped in the exercise of their rights, R.S.Q., c. E-20.1. This Act defines "handicapped person" as follows:
a person limited in the performance of normal activities who is suffering, significantly and permanently, from a physical or mental deficiency, or who regularly uses a prosthesis or an orthopaedic device or any other means of palliating his handicap.
The STO operates a conventional bus public transit system serving the cities of Aylmer, Buckingham, Cantley, Chelsea, Gatineau, Hull and Masson-Angers. Since 1981, the STO has provided a door-to-door paratransit service in this territory for persons whose disabilities preclude them from using the conventional public transit system.
In its paratransit policy revised in 1994, the ministère des Transports of the Province of Quebec broadened the paratransit eligibility criteria. As a result, many people who did not qualify for paratransit services in the past, due to a mobility impairment, now have access to such services.
Under that revised policy, to be eligible for paratransit, the person must be unable to perform one of the following:
- walk 400 metres over even ground;
- climb a step 35 centimetres high with support, or descend such a step without support;
- make the whole trip on public transit;
- orient himself/herself in time and space;
- communicate orally or by gesture;
- cope with situations or behaviours potentially harmful to his/her own or others' safety.
STO users who qualify for paratransit under the Gouvernement du Québec's eligibility criteria and who make trips on a regular basis for work, post-secondary education or recurring physical rehabilitation care or trips on an occasional basis for non-recurring health care have access to paratransit on the territory served by the STO and the territory served by the Ottawa-Carleton Regional Transit Commission (hereinafter OC Transpo). Regular trips for recurring physical rehabilitation care are available on the whole territory served by the STO. On the Ontario side, such travel is confined to/from the Ottawa General Hospital, the Ottawa Civic Hospital, the Ottawa Children's Treatment Centre and the Ottawa Rehabilitation Centre.
For occasional trips for cultural, recreational or social purposes, users can avail themselves of paratransit on the whole territory served by the STO; on the Ontario side, such travel is limited to/from any point located within the quadrilateral bounded on the east by King Edward Street, on the south by the Queensway highway, on the west by Booth Street and on the north by the Ottawa River.
Since 1992, the Gouvernement du Québec no longer pays subsidies to public transportation undertakings for regular transit operations. The paratransit budget, which was subsidized 75 percent by the ministère des Transports of the Province of Quebec, 20 percent by the municipal governments and 5 percent by the users, has been frozen since 1996 at the real 1995 level.
Due to a strong growth in paratransit service demand in the Outaouais, 1,025 trip requests could not be met in 1996 and 4,817 could not be met in 1998. The STO estimates that most of these trips were occasional trips.
The STO's Guide de l'usager du transport adapté (hereinafter the user's guide), published in October 1996, provides that paratransit users meeting the Gouvernement du Québec's eligibility criteria are subject to a reservation process based on the type of trip.
The user's guide distinguishes three types of trips: regular, occasional and last-minute. A trip is considered regular if it is made at least once a week, at the same time, and between the same origin and destination points. An occasional trip meets specific, non-ongoing needs and is not recurring in nature. A last-minute trip is made on the actual day of the request, without 24 hours' notice, as a result of unpredictable events.
The reservation procedures set out in the user's guide were as follows:
- for regular trips, users had to call 48 hours in advance, but could reserve up to four weeks in advance.
- for occasional trips, users had to call on each occasion, not less than 24 hours in advance, but could reserve up to four weeks in advance.
- for last-minute trips, users could call the same day, without 24 hours' notice, and the requests would be accepted according to the availability of spaces.
As a result of the strong demand for paratransit early in 1998, particularly in February, March and April, when the increases were respectively 17 percent, 40 percent and 12 percent, the STO, after consultation with its Advisory Committee, amended the reservation procedures and informed paratransit users of the changes in a notice issued on May 25, 1998.
The Advisory Committee is composed of representatives of the regroupement des associations des personnes handicapées de l'Outaouais (RAPHO), the Office des personnes handicapées du Québec (OPHQ), the ministère des Transports of the Province of Quebec, the Régie régionale de la santé et des services sociaux de l'Outaouais (RRSSSO), the STO and the users.
Under the amended policy introduced by the STO on June 20, 1998, reservations for occasional trips must be made between 48 and 72 hours in advance, and the reservations are taken and confirmed in the order received, taking into account budget limits. While the reservation procedure for regular trips remained unchanged, the only requests considered for such trips are for work, post-secondary education and recurring physical rehabilitation care.
In September 1998, the STO revisited its reservation policy again as a result of the dissatisfaction expressed by users following the issuance of the first notice. In a second notice issued on September 25, 1998, the STO informed its users that, as of October 5, 1998, the only additional requests for regular trips that would be accepted would be for trips that could be grouped without extra cost. Requests for occasional trips would be placed on a reservation list and confirmed 48 hours in advance instead of 24 hours, as in the past. Further, no priority would be assigned based on the time of reservation.
In 1998, the STO performed 88,854 trips (64,747 regular trips and 24,107 occasional trips). Recreation, shopping and health care accounted for 40 percent of these trips, with recreation and shopping (occasional trips) making up 30 percent, and health care (regular and occasional trips) 10 percent. The STO specifies that half of the health-care trips performed in 1999 were recurring.
POSITIONS OF THE PARTIES
Edouard Conrad Kyer
Mr. Kyer has made use of the STO paratransit services for occasional trips since February 1995. When he travels, he uses a wheelchair. On July 6 and August 3, 1998, he was unable to obtain paratransit services to go to his physician.
Mr. Kyer is of the opinion that the difficulties he experienced in July and August 1998, when he was unable to obtain paratransit services to go to his physician, were due to the new reservation procedures introduced by the STO in June 1998 requiring that reservations be made between 48 and 72 hours in advance. Mr. Kyer explains that he did not encounter this kind of problem under the old system when he was able to reserve as much as a month in advance. He further submits that he is no longer entitled to travel with an attendant because of his motorized wheelchair.
Imelda Beauregard
Mrs. Beauregard uses a wheelchair. She has made use of paratransit services since 1988 and has experienced considerable difficulty in obtaining such services. Mrs. Beauregard needs the STO's services for medical purposes on a non-recurring basis (visits to her physician, blood tests at the hospital) and to go to the shopping centre or to visit her ailing daughter.
Mrs. Beauregard is of the opinion that paratransit is an essential service, not a privilege. In this regard, she recommends that her trips for health purposes receive priority treatment, and that her trip requests for recreation and shopping not be automatically denied.
Line Potvin
Mrs. Potvin has been a regular user of the STO paratransit services for over 11 years. She uses a three-wheeled power scooter. Most of her trips are made to travel between her home in Aylmer and her work place on Metcalfe Street in Ottawa, five days a week. She also uses paratransit services once a week for her second job at an arts shop on Richmond Road, in Ottawa, where she rents a booth to sell her artwork.
Mrs. Potvin's application relates to the time required to make the journey back from her work to her home, as part of her regular trips, and the STO's refusal to classify her weekly trips for her second job as regular trips.
Mrs. Potvin explains that the state of her health has deteriorated since 1990 and that it is painful for her to remain seated for more than 30 minutes. She considers the time required to make the journey back from her work to her home every day of the week too long. Mrs. Potvin says that, previously, the return home used to take only 30 or 40 minutes, but, since May 1998, it takes her between an hour and an hour and 15 minutes to make the same journey.
In this regard, Mrs. Potvin argues that this return time contravenes the STO's official paratransit policy, as provided for in the user's guide, because it exceeds that of any trip made by the public transit service. Mrs. Potvin explains that this situation is due to the fact that the driver has to go to pick up another user at the other end of Ottawa, in the opposite direction from her home. Mrs. Potvin wants to be taken home in a reasonable amount of time, as was done before. To that end, she requests that the STO alter the route.
As for the trips made on a weekly basis for her second job, Mrs. Potvin asserts that the STO refuses to change the status of such trips from occasional to regular trips although her requests meet all of the criteria applicable to regular trips in that they are for work, at least once a week at a set time and involve the same origin and destination points. Mrs. Potvin explains that her second job is very important to her as it represents a significant second income. In this respect, Mrs. Potvin stresses that the STO's refusal to transport her has caused her to lose hundreds of dollars. Mrs. Potvin indicates that, with the new reservation system, she is no longer certain of being able to travel to her second job. She adds that she was unable to go during the week of September 7, 1998 to pay her rent.
The STO
The STO indicates that the introduction of several measures enabled it to increase the number of trips and to meet the demand for paratransit until February 1998. The STO states, however, that since April 1998 it has been unable to absorb the strong growth in demand and has been forced to refuse requests for occasional trips and to create waiting lists. The STO confirms that this is exactly what happened in Mr. Kyer's and Mrs. Beauregard's cases.
The STO explains that its inability to fully meet the demands of persons with disabilities is due to the growth in demand for paratransit services coupled with the budget freeze of recent years. The STO submits that the strong growth in demand for paratransit services is due to several factors such as deinstitutionalization, the switch in favor of ambulatory care, the development of leisure activities and the ageing of the population. The STO adds that the broadening of the eligibility criteria for paratransit services in 1994 by the ministère des Transports of the Province of Quebec also contributed to increasing the demand for such services.
In answer to Mr. Kyer's concern about the new reservation procedures and Mrs. Beauregard's recommendation to give priority to requests for occasional trips for health purposes, the STO explains that the new reservation procedure allowing occasional trips to be reserved 72 hours in advance and the decision not to give priority based on the reasons for travel were made after consultation with its Advisory Committee on which a user representative sits.
The STO states that it has no intention of establishing priorities to trips based on the reasons for travel. The STO submits that, following the passage of the Act to secure the handicapped in the exercise of their rights in 1978, there is nothing enabling transportation undertakings to give priority to trips based on the reasons for travel. The STO explains that, while it can deduce the reason for a trip from the destination address, it does not ask users their reasons for travelling. The STO adds that paratransit services users are reluctant to disclose the reasons for their trips. In fact, the STO is of the opinion that such an approach is likely to raise an outcry from users, and that this option does not produce a solution, but only shifts the problem.
As for the right to travel with an attendant, the STO submits that users who use a three-wheeled or four-wheeled power scooter do not have such a right as they take up two places in the vehicle. Consequently, the presence of an attendant occupying a third place might deprive another user of access to the paratransit service. The STO indicates that it did explain to Mr. and Mrs. Kyer that users who use a three-wheeled or four-wheeled power scooter were not entitled to travel with an attendant. However, as Mr. Kyer uses a wheelchair, the STO confirms that he is entitled to travel with an attendant.
With respect to Mrs. Beauregard's recommendation that her requests for trips for recreation and shopping purposes not be automatically denied, the STO submits that such is not the case. The STO does, however, admit that the transportation requests to which Mrs. Beauregard refers are dependent on whether they can be grouped with other transportation requests and budget limits.
In answer to Mrs. Beauregard's statement that paratransit is an essential service, not a privilege, the STO asserts that it agrees with this principle, but reiterates that the budget limits imposed on it by the ministère des Transports of the Province of Quebec make it impossible for it to meet the growing demand for paratransit services.
Regarding the time required for Mrs. Potvin since May 1998 to travel to and from her place of work, as part of her regular trips, the STO points out that, for 1998, the average time for these trips was 32 minutes, which it considers quite acceptable. The STO admits, moreover, that the duration of each trip varied between 20 minutes and an hour and 15 minutes. The STO explains this variation by the fact that in some cases Mrs. Potvin was the only passenger on board the vehicle while on other occasions she was making the trip with other users.
As for its refusal to consider Mrs. Potvin's weekly trips to her second job as regular trips, the STO explains that Mrs. Potvin's trips were considered occasional inasmuch as it was determined that the nature of the trip allowed Mrs. Potvin some flexibility as she was not confined to travel on a specific day of the week or at a set time.
BOUCHER REPORT - ÉTUDE DU SERVICE DE TRANSPORT ADAPTÉ DE LA STO
The final report of Michel Boucher (hereinafter the Boucher Report) deals with paratransit and the effectiveness of the management of the STO's paratransit service, taking into account the intent of the Act to secure the handicapped in the exercise of their rights and the operational and budgetary constraints affecting paratransit in general.
In his report, Mr. Boucher takes into account the specific features of the territory to be served and the STO's performance compared with that of other Canadian paratransit authorities, such as OC Transpo and its paratransit service "Para Transpo", and the Société de transport de la communauté urbaine de Québec (STCUQ) and its paratransit service "service de transport adapté du Québec Métropolitain" (TAQM).
Overview of paratransit and the STO
Paratransit is characterized by an ever-growing demand that, as a rule, far exceeds the available service capacity. The STO, like the other Canadian paratransit authorities which were studied, is affected by this reality and must take significant measures to allow it to cope with the operational and budgetary constraints. According to the Boucher Report, the pressure of demand driven by a price level corresponding to less than 10 percent of its average cost of production, a new, broader definition of who constitutes a paratransit user and the ageing of the population led to a rapid increase in the number of trip requests.
The paratransit service clientele is split into two groups. One group uses the service regularly, mainly for work and education, and the other uses the service occasionally for cultural, recreational or social purposes or non-recurring medical care. Mr. Boucher notes that users making regular trips are privileged over those requesting occasional trips because of the special reservation procedures of the STO. Further, trip requests by users with intellectual disabilities, who are now in homes rather than institutions, account for a high percentage of the number of regular trips made. Mr. Boucher also notes that the users most affected by the paratransit services are passengers who have to move with the assistance of a wheelchair, mainly on occasional trips, despite the fact that the paratransit service system was initially designed to respond to the needs of persons with mobility impairments.
Mr. Boucher also makes reference to the opportunity cost, that is, the cost borne by users denied access to the paratransit service, which is greater for regular users than occasional users. For regular users, being denied access to the paratransit service may mean being deprived of the possibility of holding and deriving remuneration from a job, pursuing and completing an education or receiving medically necessary health services. For occasional users, being denied access to the paratransit service holds a lesser opportunity cost, as, in the majority of cases, the use of the paratransit service is merely for cultural, recreational or social activities. On the other hand, users making occasional trips for non-recurring health care have a higher opportunity cost than other occasional users, considering the possible impact on their health if denied access to the paratransit service.
Specific features of the territory to be served by the STO
The Boucher Report brings to light a fact peculiar to the STO and not shared by OC Transpo and the STCUQ, being the configuration of the territory to be served. The services offered by the STO cover a clientele located along the Ottawa River, with the origin being within one of the cities served by the STO, and the destination either downtown Hull or downtown Ottawa, and include, if the situation requires it, the alternative services provided by OC Transpo to reach the final destination. The STO's services are therefore almost one-way and, as such, the STO experiences tremendous difficulties in balancing outbound and return trips, and, as a result, returns without any passengers on board the vehicles are inevitable. Consequently, unit production costs are higher than those incurred by OC Transpo or by the STCUQ. In fact, because their activities, unlike those of the STO, are more spread out on the whole territory, they can better balance outbound and return trips. Further, the population and size of its territory hardly favours the STO. The population served by the STO is 228,054 inhabitants while those served by OC Transpo and the STCUQ are 650,000 and 550,000 respectively. As for size, the STO's territory covers a total of 589 km2 compared with 368 km2 for OC Transpo and 555 km2 for the STCUQ.
Comparison of the STO's paratransit service with those of the other paratransit authorities studied shows that the STO's performance compares favourably in terms of service management and production practices, considering the specific features of the paratransit service system in the Outaouais.
Exploding demand
In his report, Mr. Boucher describes the recurrent exploding demand phenomenon as situations where a sudden growth in demand far exceeds a transit authority's capacity to meet this increase in demand.
In other words, in situations where the demand for a service substantially exceeds the service capacity, transit authorities must undertake measures in order to attempt to respond to this increase. On the other hand, users react favorably to any increase in capacity which, automatically, leads to a sudden growth in demand. As far as the STO is concerned, the exploding demand occurred twice; in 1986 when the STO was unable to meet 1,025 trip requests and again in 1998 with 4,817 requests that were not met.
Measures undertaken by the STO
Following the Gouvernement du Québec's cessation of the subsidy program for regular public-transit services in 1992, the STO reacted strongly and took steps to minimize the impact. First, it reduced non-performing services, i.e. early-morning, late-night, off-peak and weekend routes, over its whole transportation system (regular public transit and paratransit). In addition, the STO increased the productivity of its workforce and streamlined its operations.
With respect to paratransit, following the provincial and regional government funding freeze in 1996, the STO regained control of dispatching in 1997, and since that time, the administration and dispatching of services have been publicly administered. At the end of the same year, the STO proposed a new contract structure and awarded to Autobus La Québécoise the provision of transportation services for ambulatory customers by conventional minibus and the provision of transportation services for persons with disabilities by accessible minibus equipped with a person-lift. It also awarded to three taxi companies based on its territory the provision of transportation services by conventional and accessible taxis (minivan, four-door sedan and accessible motor car). This new approach enabled it to reduce the distance between its users and service providers, to cut operating costs and to make a greater number of trips with the same resources. Since April 1998, the STO has not only been able to do optimum pairing of minibuses and taxis but can also determine the real costs of a trip and select the most efficient means of transportation for a given situation.
COMMENTS ON THE FINAL REPORT
Mrs. Beauregard submits that this analysis confirms the merits of her application and demonstrates that the paratransit services provided in 1998 were deficient.
The STO is of the opinion that Mr. Boucher clearly grasped and described the problem and issues of paratransit, and that, globally, the analysis of the situation well reflects the constraints and challenges facing paratransit authorities. In this respect, the STO argues that any comparison between regular transit and paratransit is inappropriate inasmuch as regular transit is a mass transit service whereas paratransit is a door-to-door transit service carried on by means of reservations. The STO explains that it is impossible for it to manage paratransit services in the same way as regular transit considering the circumstances specific to paratransit, in particular, the growth in demand, the subsidy freeze and the complexity of the needs. The STO also points out that the territory served by paratransit is by far the largest territory served by any Quebec public transit undertaking.
The STO further notes that, despite all of these constraints, Mr. Boucher describes the STO's performance as remarkable compared with that of other public transit authorities. The STO clarifies that the performance to which Mr. Boucher refers is not due to chance; it is, rather, due to the result of improvements the STO has made to the management of its service, in particular, the resumption of control of dispatching, the introduction of transportation services provided by taxi companies, the development of fixed routes and the acquisition of the Trapeze software. The STO nevertheless admits that it cannot meet all user requests, although steps are being taken to prevent such situations. Finally, the STO pointed out some corrections and clarifications to be made in the final report, which were incorporated in the Boucher Report.
ANALYSIS AND FINDINGS
In making its findings, the Agency has considered all of the evidence submitted by the parties during the pleadings. The Agency has also examined the Boucher report assessing the administrative practices of the STO and other Canadian paratransit authorities and considers that it well reflects the situation of paratransit. In this respect, the Agency notes that the report was favourably received by Mrs. Beauregard and by the STO.
An application must be filed by a person with a disability or on behalf of a person with a disability. Mr. Kyer has emphysema and angina pectoris and uses a wheelchair to travel. Mrs. Beauregard is a bilateral amputee and is a wheelchair user. Mrs. Potvin has a severe spina bifida thoracolumbar scoliosis condition and uses a three-wheeled power scooter. As such, the Agency finds that they are persons with disabilities for the purpose of applying the accessibility provisions of the CTA.
To determine whether there is an undue obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the CTA, the Agency must first determine whether the applicant's mobility was restricted or limited by an obstacle. If so, the Agency must then decide whether that obstacle was undue. In order to answer these questions, the Agency must take into consideration the particular facts of the case before it.
Whether the applicant's mobility was restricted or limited by an obstacle
The word "obstacle" is not defined in the CTA. This implies that Parliament did not want to restrict the Agency's jurisdiction in view of its mandate to eliminate undue obstacles in the federally-regulated transportation network. Furthermore, the word "obstacle" lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement.
In determining whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency looks to the travel experience of that person as expressed in the application. There is a broad range of circumstances where the Agency has found obstacles in the past. For example, there are cases of obstacles where the person was prevented from travelling, where the person was injured in the course of his or her travels (such as where the lack of appropriate accommodation during travel affects the physical condition of the passenger), or where the person was deprived of his or her mobility aid after the trip as a result of damage caused to the aid while it was being transported. Also, the Agency has found obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience were such as to detract from the person's sense of confidence, dignity, safety, or security, recognizing that these feelings may be such as to disincline a person from future travel.
Whether the obstacle was undue
As with the term "obstacle", the term "undue" is not defined in the CTA in order to allow the Agency to exercise its discretion to eliminate undue obstacles in the federally-regulated transportation network. The word "undue" also lends itself to a broad meaning; it is commonly understood to mean exceeding or violating propriety or fitness; excessive; inordinate; disproportionate. As something may be found disproportionate or excessive in one case and not in another, the Agency must take into account the context in which the allegation that an obstacle is undue is made. Under this contextual approach, the Agency must strike a balance between the rights of passengers with disabilities to use the federally-regulated transportation network without encountering undue obstacles and the carriers' commercial and operational considerations and responsibilities. This interpretation is in keeping with the national transportation policy set out in section 5 of the CTA and more particularly in subparagraph 5(g)(ii) of the CTA where it is stated inter alia that conditions under which carriers or modes of transportation operate must, so far as practicable, not constitute an undue obstacle to the mobility of persons with disabilities.
While the transportation industry designs its services to meet the needs of its users, the accessibility provisions of the CTA require transportation service providers in the federally-regulated transportation network to adapt their services, so far as practicable, to the needs of persons with disabilities. There are however some impediments that have to be taken into consideration, such as security measures carriers must adopt and apply, timetables or schedules that they must attempt to adhere to for commercial reasons, equipment design and the economic impact to adopt services. These impediments may have some impact on persons with disabilities as, for example, they may not be able to board a plane in their own wheelchair, they may have to arrive at a terminal earlier to allow time for boarding, and they may have to wait for a longer period of time for deplaning assistance than persons without disabilities. It is impossible to establish an exhaustive list of the obstacles a passenger with a disability may encounter and the impediments that transportation service providers will encounter in trying to meet the needs of persons with disabilities. A balance has to be struck between the responsibilities of transportation service providers and the rights of persons with disabilities to travel without encountering undue obstacles and it is in the weighing of this balance that the Agency applies the concept of undueness.
The present cases
1. Overview of paratransit
The Agency notes that this area of activity is characterized by steady growth in demand which, as a rule, but particularly in periods where there is an exploding demand, far exceeds the capacity of transit authorities to meet the demand.
First, the Agency finds that paratransit services provided door-to-door to persons with disabilities are very different in nature from regular public transit services provided by bus. In this respect, the Agency shares the STO's position that any comparison between regular transit and paratransit is inappropriate.
Further, the Agency recognizes that the significant growth in paratransit demand is largely due to factors beyond the STO's control, notably, the broadening of the eligibility criteria by the ministère des Transports of the Province of Quebec in 1994, the ageing of the population, the deinstitutionalization of persons with intellectual disabilities, home support services for senior citizens, the switch in favor of ambulatory care, the configuration of the territory to be served and the one-way nature of the services.
The Agency notes that the inability of the paratransit authorities to meet the demand and the factors contributing to an exploding demand are not unique to the STO. Indeed, the Agency notes that the other Canadian paratransit authorities analyzed are faced with the same problems, and they have to cope with the same growth factors and must take similar steps to minimize their operating costs and increase the number of trips.
As for the STO's performance, the Agency finds that a comparison of the STO's services with those provided by OC Transpo and the STCUQ shows that it stands up favourably in terms of service management and production practices considering the specific features of the paratransit service system in the Outaouais. While the measures undertaken by the STO have enabled it to be more efficient and to increase capacity, the Agency notes that the STO was compelled to deny several trip requests in 1996 and 1998. The Agency recognizes that the STO has in a way been a victim of its own success.
2. Edouard Conrad Kyer and Imelda Beauregard
A. Whether Mr. Kyer's and Mrs. Beauregard's mobility was restricted or limited by an obstacle
Mr. Kyer's and Mrs. Beauregard's applications relate to the reservation procedure for occasional trips for health care. In both cases, their requests for trips to go to see their physicians were denied.
The Agency notes that following the exploding demand experienced in 1996 and 1998, the STO introduced a new reservation procedure for users making occasional trips to give priority to users making regular trips for work, post-secondary education and recurring physical rehabilitation care.
Under the new provisions of the user's guide, users making occasional trips for cultural, recreational or social purposes or non-recurring health care have to call 72 hours in advance to reserve, whereas users making regular trips can reserve up to four weeks in advance. In this regard, the Agency notes that users like Mr. Kyer and Mrs. Beauregard who make occasional trips for non-recurring medical purposes are subject to the same reservation procedure as users who make occasional trips for cultural, recreational or social purposes.
The Agency finds that this new reservation policy that provides the same treatment to occasional trips for health care and occasional trips for cultural, recreational or social purposes constitutes an obstacle to Mr. Kyer's and Mrs. Beauregard's mobility.
B. Whether the obstacle to Mr. Kyer's and Mrs. Beauregard's mobility was undue
Having concluded that an obstacle existed, the Agency must now determine whether the obstacle was undue.
As the provider of a public transit service, the STO must provide an adequate level of service to users without regard to the reasons for travel. In this respect, the Agency notes that the STO took the administrative measures necessary to try to minimize its operating costs and to satisfy as many passengers as possible. The Agency, nevertheless, recognizes that the STO's resources are not unlimited, especially in periods where there is an exploding demand. Considering the available resources, the STO is as a result unable to meet all requests for paratransit services. The Agency is, however, concerned by incidents like that experienced by Mr. Kyer and Mrs. Beauregard.
The Agency notes the STO's observation that granting priority to occasional trips for non-recurring health care is not a solution and only displaces the problem by shifting it onto another category of users. The Agency is, however, of the opinion that occasional trips for non-recurring health care cannot be treated in the same way as occasional trips for recreational, social or cultural purposes. These are not trips of the same nature. It is the Agency's view that the denial of an occasional-trip request for non-recurring health care may entail more serious consequences, in terms of health, than the denial of an occasional-trip request for recreational, social or cultural purposes. Obtaining another medical appointment, moreover, may prove a difficult undertaking considering the current health-care situation.
The Agency finds that the new reservation policy which results in according the same treatment to requests for occasional trips for non-recurring health care and requests for occasional trips for recreational, social or cultural purposes constitutes an undue obstacle to the mobility of users requesting paratransit services for non-recurring health care. Considering the current social context and the STO's obligations as a public transit service provider, particularly in periods where there is an exploding demand, the Agency is of the view that it would be appropriate for the STO to relax its reservation procedure for occasional trips for non-recurring health care to allow users in this category greater flexibility. While recognizing that changing this reservation policy does not in itself constitute a guarantee that all requests for occasional trips for non-recurring health care will be satisfied, the Agency is of the opinion that, at the very least, such an initiative would better meet the needs of users who request such services.
In this regard, it is the Agency's opinion that, if Mr. Kyer had the opportunity to avail himself of a more flexible reservation policy, he would perhaps have been able to obtain paratransit services to go to see his physician on July 6 and August 3, 1998. Mrs. Beauregard, for her part, would perhaps also have experienced less difficulty in obtaining paratransit services for her occasional trips.
Accordingly, the Agency is of the opinion that, to prevent incidents similar to those experienced by Mr. Kyer and Mrs. Beauregard from recurring, it would be appropriate for the STO to change its reservation policy to allow users making occasional trips for non-recurring health care to reserve up to two weeks in advance. Additionally, the Agency is of the view that, to prevent any misunderstanding and avoid confusion, the STO should issue another notice to its users to inform them of the new reservation policy applicable to users making occasional trips for non-recurring health care.
3. Line Potvin
A. Whether Mrs. Potvin's mobility was restricted or limited by an obstacle
Mrs. Potvin's application relates to the time required to make the journey back from her work to her home, as part of her regular trips, and the STO's refusal to classify her weekly trips for her second job as regular trips.
The Agency accepts Mrs. Potvin's statement that her state of health has deteriorated since 1990, that it is painful for her to remain seated for more than 30 minutes, and that she has experienced difficulties since May 1998 as a result of the additional time required to make the journey back from work to her home. While the information submitted by the parties about the duration of the journey is contradictory, the Agency notes that the STO has admitted that the duration of each trip could range between 20 minutes and an hour and 15 minutes. Accordingly, the Agency considers Mrs. Potvin's concern legitimate.
As for the STO's refusal to classify Mrs. Potvin's trips for her second job as regular trips, the Agency finds that the paratransit situation prevailing in 1998 was particularly difficult, especially for users making occasional trips. In fact, more than 4,817 requests, most for occasional trips, could not be satisfied. In this regard, Mrs. Potvin, like those thousands of other users, was a victim of the imbalance between regular and occasional trips.
In light of the foregoing, the Agency finds that the additional time required for Mrs. Potvin to make the journey back from her work to her home, as part of her regular trips, and the STO's refusal to classify Mrs. Potvin's weekly trips for her second job as regular trips constituted obstacles to her mobility.
B. Whether the obstacles to Mrs. Potvin's mobility were undue
Having concluded that there were obstacles, the Agency must now determine whether the obstacles were undue.
With respect to the additional time required since May 1998 for Mrs. Potvin to make the journey back from her work to her home, as part of her regular trips, the Agency, as previously stated, accepts that Mrs. Potvin's concerns were legitimate. The Agency notes, however, that, because of the significant increase in demand for regular trips and the STO's inability to satisfy all requests for paratransit services, the STO had to streamline its operations, review its way of managing the demand and capacity and take some corrective measures, such as grouping of routes. In this regard, considering the operational and budgetary constraints, the Agency recognizes that the STO was unable to model routes in a very personalized way. Consequently, it is the Agency's opinion that the STO's new way of doing things, the new rules applicable to regular trips introduced by the STO in 1998, and the congestion of road traffic during peak hours largely explain the situation that Mrs. Potvin is faced with.
As for the refusal to classify Mrs. Potvin's weekly trips for her second job as regular trips, the Agency accepts the explanations submitted by the STO to the effect that Mrs. Potvin's trip requests do not meet all of the criteria applicable to regular trips. In this respect, after examining the trips made by Mrs. Potvin during 1998 and 1999, the Agency notes that the departure time and the average duration of each trip to her work place varied. The Agency further notes that, as a result of the new rules applicable to regular trips, since October 5, 1998, the only additional requests for regular trips accepted by the STO were for trips that could be grouped without extra cost. Accordingly, the Agency accepts the STO's statement that accepting Mrs. Potvin's trip requests would have compelled the STO to deny many other trip requests as resources were being used elsewhere on the territory.
In light of the foregoing, while recognizing that the additional time required for Mrs. Potvin to make the journey back home from her work, as part of her regular trips, and the STO's refusal to classify Mrs. Potvin's trips for her second job as regular trips constituted obstacles, the Agency finds that these obstacles were not undue.
CONCLUSION
The Agency concludes that the difficulties encountered by Mrs. Potvin with respect to the accessibility of the STO's paratransit services did not constitute undue obstacles to her mobility.
The Agency concludes that the difficulties encountered by Mr. Kyer and Mrs. Beauregard in obtaining paratransit services for non-recurring health care constituted an undue obstacle to their mobility. Accordingly, the Agency hereby orders the STO to take the following corrective measures within sixty (60) days from the date of this Decision:
- change its reservation policy to allow users who make occasional trips for non-recurring health care to reserve as much as two weeks in advance, and to file a copy of the amended policy with the Agency; and
- issue a notice to its users to inform them of the new reservation policy applicable to users making occasional trips for non-recurring health care, and to file a copy of this notice with the Agency.
Upon review of the requested documents, the Agency will determine whether further action is necessary in this matter.
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