Letter Decision No. LET-AT-R-146-2001

The Canadian Transportation Agency (the Agency) has received your letter of February 22, 2001 and has carefully considered the submissions made therein. VIA Rail Canada Inc. (VIA) has argued the position that the Agency does not have the jurisdiction to proceed with the new inquiry with respect to the matter of section 13-D of VIA's tariff. The complaint of Jean Lemonde was filed with and adjudicated by the National Transportation Agency (the NTA) under the provisions of the National Transportation Act, 1987 (the NTA, 1987). Specifically, subsection 63.3(1) of the NTA, 1987, the applicable accessible transportation provision, stated:

The Agency may, of its own motion or on application, inquire into a matter in relation to which a regulation could be made under subsection 63.1(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of disabled persons.

The NTA issued Decision No. 791-R-1995 and Order No. 1995-R-491 on November 28, 1995. A motion for leave to appeal the decision was filed by VIA with the Federal Court of Appeal and leave to appeal was granted to VIA on June 3, 1996. The appeal was heard by the Federal Court of Appeal on September 25, 2000 and the Court issued its decision on October 10, 2000.

In the meantime, on July 1, 1996 the Canada Transportation Act (the CTA) was enacted, replacing the NTA, 1987 and the NTA was continued as the Agency. The relevant transitional provisions of the CTA are as follows:

195.(1) Subject to this section, proceedings relating to any matter before the National Transportation Agency on the coming into force of this section, including any matter that is in the course of being heard or investigated by the National Transportation Agency, shall be continued by the Canadian Transportation Agency.

195.(2) Unless the Governor in Council, by order, directs that proceedings continued under this section are to be dealt with in accordance with the provisions of this Act, the proceedings shall be dealt with and determined in accordance with the provisions of the National Transportation Act, 1987 as that Act read immediately before the coming into force of section 183.

No directions were issued by the Governor in Council regarding the continuation of this matter or matters of this type and, accordingly, this proceeding will continue to be considered by the Agency under the provisions of the NTA, 1987.

VIA's submission of February 22, 2001 argues that, despite the Federal Court of Appeal ordering a rehearing of this matter by the Agency, the Agency does not have jurisdiction to conduct this investigation as there is no complaint and no complainant.

The Agency recognizes that the issue of the tariff was not the subject of Mr. Lemonde's original complaint and Mr. Lemonde has never made submissions to either the NTA, the Agency or the Federal Court of Appeal on this subject. However, the issue did arise in the context of Mr. Lemonde's complaint in that the NTA identified problems with the tariff from the pleadings in Mr. Lemonde's complaint and initiated this aspect of the investigation on its own motion. Clearly, the NTA had the power to do this under the NTA, 1987 and VIA has never disputed this fact. Although the tariff issue arose in the context of an application, the NTA also had the power to conduct an investigation into this matter on its own motion.

The Agency and its predecessor, the NTA, have always considered it appropriate to address accessibility issues it identifies while investigating a complaint regardless of the manner in which those issues are framed by the complainant. To do otherwise, would be to narrow the Agency's mandate to only those issues that complainants may identify as falling within the Agency's jurisdiction which would require complainants to have an unreasonably extensive knowledge of the Agency's body of work prior to filing a complaint. This interpretation of its mandate is supported by, in the case of the NTA, section 39 of the NTA, 1987 which states:

1. On any application made to the Agency, the Agency may grant the whole or part only of the application, or may grant such further or other relief, in addition to or in substitution for that applied for, as to the Agency may seem just and proper, as fully in all respects as if the application had been for the partial, other or further relief.
2. The Agency may, on terms or otherwise, make or allow any amendments in any proceedings before it.

VIA also argues that the Agency should not consider this matter because the complainant has not led evidence on the subject. VIA claims that this denies the Agency "the tools and therefore the jurisdiction to decide the matter". Regardless of whether the Agency is acting under subsection 63.3(1) of the NTA, 1987 or subsection 172(1) of the CTA, the Agency, as a quasi-judicial administrative tribunal, is not bound by the strict rules of evidence and procedure that are applicable to courts of law. In many cases before the Agency and, in particular, in the case of VIA's tariff, there is no lis inter partes, and no adversarial process between the complainant and the respondent. It has already been noted that the subject of this proceeding was not the subject of Mr. Lemonde's complaint. Rather, the NTA, in addressing this issue when investigating the complaint of Mr. Lemonde and rendering a finding on this, was addressing community interests at large. Unlike courts of law, the Agency is not limited to determining a matter on the basis of the case, the issues, the information or the evidence which the parties choose to present to it.

Finally, VIA appears to submit that the Agency does not have jurisdiction over this matter because it is systemic in nature - the tariff has "general application across the entire rail network". The Agency rejects this argument. Subsection 63.3(1) of the NTA, 1987, reproduced above, set out the jurisdiction of the NTA to consider complaints regarding accessible transportation issues. This provision defined the extent of the NTA's jurisdiction to consider complaints with a specific reference to the NTA's regulation-making power under subsection 63.1(1). In this way, in order to determine the extent of the NTA's jurisdiction under subsection 63.3(1), reference must be made to subsection 63.1(1). Subsection 63.1(1) of the NTA, 1987 stated that the NTA may make regulations for the purpose of eliminating undue obstacles respecting:

1. the design, construction, or modification of, and the posting of signs on, in or around, means of transportation and related facilities and premises, including equipment used in them;
2. the training of personnel employed at or in those facilities or premises by carriers;
3. tariffs, rates, fares, charges and terms and conditions of carriage applicable in respect of the transportation of disabled persons or services incidental thereto; and
4. the communication of information to disabled persons.

It is clear from the subjects set out in paragraphs (a) through (d) that systemic issues such as the application of a carrier's tariffs and terms and conditions of carriage were within the NTA's jurisdiction, both in its regulation-making function and in its complaint adjudication function. Furthermore, the effectiveness of the Agency in executing its mandate to eliminate undue obstacles from the federal transportation network is, in large part, dependent upon the corrective measures imposed to effect changes to the system. Where undue obstacles result from the application of carriers' tariffs, policies and procedures, it is critical that the Agency address these provisions of general application to ensure that the same undue obstacles will not be experienced by future travellers with disabilities.

In any event, the Federal Court of Appeal in its Judgment of October 10, 2000 referred the matter back to "a differently constituted panel of the Agency to conduct a new inquiry with respect to the tariff" and, in light of all of the above, the Agency has determined that it will pursue this inquiry.