SUPREME
COURT OF CANADA
Citation: Council of
Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R.
650, 2007 SCC 15
|
Date: 20070323
Docket: 30909
|
Between:
Council
of Canadians with Disabilities
Appellant
and
Via
Rail Canada Inc.
Respondent
‑ and ‑
Canadian
Transportation Agency, Canadian Human
Rights
Commission, Ontario Human Rights Commission,
Commission
des droits de la personne et des droits
de
la jeunesse, Manitoba Human Rights Commission,
Saskatchewan
Human Rights Commission,
Transportation
Action Now, Alliance for Equality
of
Blind Canadians, Canadian Association for
Community
Living, Canadian Hard of Hearing
Association,
Canadian Association of Independent
Living
Centres and DisAbled Women’s Network Canada
Interveners
Coram:
McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron
and Rothstein JJ.
Reasons for
Judgment:
(paras. 1 to 246)
Joint Dissenting
Reasons:
(paras. 247 to 370)
|
Abella J. (McLachlin C.J. and Bastarache, LeBel and
Charron JJ. concurring)
Deschamps and Rothstein JJ.
(Binnie and Fish JJ. concurring)
|
______________________________
Council of Canadians with Disabilities v. VIA Rail Canada
Inc., [2007] 1 S.C.R. 650, 2007 SCC 15
Council of Canadians with Disabilities Appellant
v.
VIA Rail Canada Inc. Respondent
and
Canadian Transportation Agency, Canadian
Human Rights Commission, Ontario Human
Rights Commission, Commission des droits
de la personne et des droits de la jeunesse,
Manitoba Human Rights Commission,
Saskatchewan Human Rights Commission,
Transportation Action Now, Alliance for Equality
of Blind Canadians, Canadian Association for
Community Living, Canadian Hard of Hearing
Association, Canadian Association of Independent
Living Centres and DisAbled Women’s Network Canada Interveners
Indexed as: Council of Canadians with Disabilities v.
VIA Rail Canada Inc.
Neutral citation: 2007 SCC 15.
File No.: 30909.
2006: May 19; 2007: March 23.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel,
Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the federal court of appeal
Transportation law — Railways — Duty to accommodate
passengers with disabilities — VIA Rail purchasing rail cars — Canadian
Transportation Agency ordering VIA Rail to modify 13 economy coach cars
and 17 service cars to make them personal wheelchair accessible — Whether
accommodation imposing undue hardship on VIA Rail — Whether Agency’s decision
ordering VIA Rail to retrofit some of its newly purchased cars patently
unreasonable — Canada Transportation Act, S.C. 1996, c. 10,
ss. 5 , 172 .
Administrative law — Judicial review — Standard of
review — Canadian Transportation Agency ordering VIA Rail to modify
13 economy coach cars and 17 service cars to make them personal
wheelchair accessible — Standard of review applicable to Agency’s decision —
Whether preliminary jurisdictional question subject to different standard of
review — Canada Transportation Act, S.C. 1996, c. 10, s. 172 .
In late 2000, VIA Rail paid $29.8 million to
purchase 139 rail cars (“Renaissance cars”) no longer required for overnight
train service through the Channel Tunnel. These cars were inaccessible to
persons with disabilities using personal wheelchairs. VIA saw the
Renaissance cars as a unique opportunity to substantially increase the size of
its fleet at a comparatively moderate cost. Preparing the equipment for
service was estimated at $100 million, but there was no “plan document” to
enhance accessibility when the cars were purchased. VIA claimed that the cars
were sufficiently accessible and that its employees would transfer passengers
into on‑board wheelchairs and assist them with services, such as washroom
use. The Council of Canadians with Disabilities (“CCD”) applied to the
Canadian Transportation Agency under s. 172 of the Canada
Transportation Act (“CTA ”), complaining that many features of the
Renaissance cars constituted undue obstacles to the mobility of persons with
disabilities. CCD relied, in part, on VIA’s alleged non‑compliance
with the “1998 Rail Code”, a voluntary Code negotiated with and agreed to by VIA
that sets minimum standards applicable to its transportation network. Under
this Code, modern accessibility standards apply to new rail cars or cars
undergoing a major refurbishment. The Code also provides that at least one car
in every train that leaves a railway station must be accessible to persons
using personal wheelchairs. VIA argued that the Renaissance cars were not
newly manufactured or undergoing a major refurbishment. The Agency found
otherwise, concluding that the Code’s modern accessibility standards applied to
the Renaissance cars.
The Agency issued a preliminary decision in
March 2003 in which it gave VIA a final opportunity to provide specific
evidence to show cause to the Agency why the obstacles it had identified were not
undue and to provide feasibility and costing information relating to the
remedial options under consideration by the Agency. Two months later, VIA
replied that it was not reasonable to require it to modify the cars; it gave
the Agency a brief estimate in a three‑page letter without any supporting
evidence. In June 2003, the Agency advised VIA that its response lacked
detail and feasibility information and was therefore unverifiable. The Agency
reissued its original show cause order, giving VIA additional time to prepare a
response. VIA submitted some cost estimates, but indicated that it was unable
to comply with the show cause order any further. VIA did not request more
time, instead repeatedly asking the Agency to render its final decision. On the
basis of the record before it, the Agency issued its final decision and ordered
VIA to implement remedial measures, all of which had been identified by the
Agency by the time it had reissued its preliminary decision in June 2003.
The main changes required VIA to modify 13 economy coach cars and
17 service cars out of the 139 cars, so that there would be one
personal wheelchair accessible car on each daytime train and one car with
personal wheelchair accessible sleeper facilities on each overnight train. The
existing fleet provided one personal wheelchair accessible car per train. VIA
used its VIA 1 cars for this purpose, which had been retrofitted to
accommodate passenger‑owned wheelchairs, but the existing fleet was to be
phased out and replaced by the Renaissance cars.
VIA successfully sought leave to appeal the Agency’s
preliminary and final decisions to the Federal Court of Appeal. In
support of its application for leave, VIA filed a report it had commissioned to
review the Agency’s final decision. The report, which was prepared in less
than 40 days after the Agency’s final decision, estimated that the cost of
implementing that decision would be at least $48 million. The Federal Court of
Appeal concluded that the Agency’s identification of undue obstacles to the
mobility of persons with disabilities was reviewable on the standard of patent
unreasonableness, but that the Agency’s interpretation of its jurisdiction
under s. 172 of the CTA was reviewable on the standard of
correctness. Although the court found that the Agency was correct to
conclude that it had jurisdiction under s. 172 to proceed with CCD’s
complaint, it disagreed with the Agency’s findings that the obstacles in the
Renaissance cars were undue, concluding that the decision was made without
considering VIA’s entire network, the interests of non‑disabled persons,
and the interests of persons with disabilities other than personal‑wheelchair
users. The court also disagreed with the Agency’s conclusion that there
was no evidence on the record to support VIA’s view that its existing network
was able to address obstacles in the Renaissance cars. Holding the
Agency’s decision to be patently unreasonable, the court set it aside and
referred the matter back to the Agency for reconsideration. The court was also
of the view that, having identified the modifications it thought necessary, the
Agency had violated VIA’s procedural fairness rights by failing to give VIA an
adequate opportunity to respond to its requests for cost and feasibility
information.
Held (Binnie,
Deschamps, Fish and Rothstein JJ. dissenting): The appeal should be
allowed and the Agency’s decisions restored.
Per McLachlin C.J.
and Bastarache, LeBel, Abella and Charron JJ.: The standard of
review applicable to the Agency’s decision as a whole is patent
unreasonableness. Under s. 172 of the CTA , Parliament gave
the Agency a specific mandate to determine how to render transportation systems
more accessible to persons with disabilities. While that mandate
undoubtedly has a human rights aspect, this does not take the questions of how
and when the Agency exercises its human rights expertise outside the mandate
conferred on it by Parliament. The Agency made a decision with many component
parts, each of which fell squarely and inextricably within its expertise and
mandate. The decision is therefore entitled to a single, deferential standard
of review. Where an expert tribunal has charted an appropriate analytical
course for itself, with reasons that serve as a rational guide, a reviewing
court should not lightly interfere with the tribunal’s interpretation and
application of its enabling legislation. Here, the Agency interpreted its
authority to proceed with CCD’s complaint under s. 172(1) in a manner that
is rationally supported by the relevant legislation. It also defined the
analytical process to be followed in identifying undue obstacles in the federal
transportation network in a way that is supported by the CTA and human
rights jurisprudence. Viewed as a whole, the Agency’s reasons show that it
approached and applied its mandate reasonably. [88] [97] [100] [104‑105]
[108‑109]
Under Part V of the CTA , the Agency must
identify — and order appropriate remedies for — undue
obstacles to persons with disabilities in the transportation context in a
manner that is consistent with the approach to identifying and remedying
discrimination in human rights law. Here, it is the design of the Renaissance
cars that is said to represent an undue obstacle. Under the concept of
reasonable accommodation, service providers have a duty to do whatever is
reasonably possible to accommodate persons with disabilities. The
discriminatory barrier must be removed unless there is a bona fide justification
for its retention, which is proven by establishing that accommodation imposes
undue hardship on the service provider. What constitutes undue hardship
depends on factors relevant to the circumstances and legislation governing each
case. The factors set out in s. 5 of the CTA are compatible with
those that apply under human rights principles. They flow out of the
factors inherent in a reasonable accommodation analysis, such as cost, economic
viability, safety, and the quality of service to all passengers, but are assessed
based on the unique realities of the federal transportation context. In this
case, VIA did not meet its onus of establishing that the obstacles created by
its purchase of the Renaissance cars were not “undue”. The Agency’s analysis
or decision was not unreasonable; in particular, there was nothing
inappropriate about the factors it did, and did not, rely on. [117‑118]
[121] [123] [133] [135] [138] [142] [144]
The Rail Code was a proper factor for the Agency to
consider in its analysis. The purpose of this Code is to function as self‑imposed
minimum standards all rail carriers have agreed to meet. The standard of
“personal wheelchair use” set out in the Code is also consistent with human
rights jurisprudence. Independent access to the same comfort, dignity, safety
and security as those without physical limitations is a fundamental human right
for all persons who use wheelchairs. In view of the widespread domestic
and international acceptance of personal wheelchair-based accessibility standards,
and particularly of VIA’s own Rail Code commitments, it was not unreasonable
for the Agency to rely on the personal wheelchair as a guiding accessibility
paradigm. VIA was not entitled to resile from this norm because it found a
better bargain for its able‑bodied customers. Neither the Rail
Code, the CTA , nor any human rights principle recognizes that a unique
opportunity to acquire inaccessible cars at a comparatively low purchase price
may be a legitimate justification for sustained inaccessibility. [146‑147]
[161-165]
The Agency also considered VIA’s network and found
that none of the evidence on the record supported VIA’s position that its
existing fleet, or its network generally, would address obstacles found to
exist in the Renaissance cars. The fact that there are accessible trains
travelling along only some routes does not justify inaccessible trains on
others. It is the global network of rail services that should be
accessible. The ad hoc provision of services does not satisfy
Parliament’s continuing goal of ensuring accessible rail services. To
permit VIA to point to its existing cars, which were to be phased out, and
special service‑based accommodations as a defence would be to overlook
the fact that while human rights law includes an acknowledgment that not every
barrier can be eliminated, it also includes a duty to prevent new ones, or at
least not knowingly to perpetuate old ones where preventable. Here, VIA did
not appear, from the evidence, to have seriously investigated the possibility
of reasonably accommodating the use of personal wheelchairs or, for that
matter, to have given serious consideration to any other issue related to
providing access for persons with disabilities. [169] [176] [186‑187]
Finally, the Agency appropriately considered the cost
of remedying an obstacle when determining whether it was “undue”. Its reasons
make clear that retrofitting some cars in the Renaissance fleet to accommodate
persons using personal wheelchairs would cost nowhere near the amounts claimed
by VIA. Moreover, the record belies VIA’s assertions that it could not have
provided cost estimates of the remedial measures prior to the Agency’s final
decision, since VIA provided a new cost estimate 37 days after this decision
was released. Each remedial measure with any cost implications had long been
identified by the Agency and VIA’s views on the structural, operational and
economic implications of each were repeatedly sought. However, the issue is
not just cost; it is whether the cost constitutes undue hardship. In
light of VIA’s refusal to provide concrete evidence in support of its undue
hardship argument, no reasonable basis existed for refusing to eliminate the
undue obstacles created by the design of the Renaissance cars. With the
information it had, the Agency determined that the cost of the remedial
measures it ordered would not be prohibitive and did not justify a finding of
undue hardship based on financial cost. The Agency’s findings with respect to
cost and undue hardship were reasonable. They should not, therefore, be
disturbed. [190] [218‑219] [226‑229]
VIA’s right to procedural fairness was not breached by
the Agency. There are no grounds for a reviewing court to interfere with the
Agency’s decision not to wait for VIA to produce the cost estimates that VIA
had repeatedly and explicitly refused to provide. Acceding to VIA’s persistent
requests, the Agency released its final decision. VIA had obviously made a
tactical decision to deprive the Agency of information uniquely in VIA’s
possession that would have made the evaluation more complete. Further, the
Agency’s final decision did not order any remedial measures for which VIA had
not previously been asked to prepare feasibility and cost estimates.
Lastly, the fact that a third party commissioned by VIA to prepare a cost
estimate did so in less than 40 days after the Agency’s final decision belies
VIA’s position that it lacked the time, expertise and money to prepare cost
estimates. The timing of the third‑party report and its untested
conclusions — conclusions fundamentally at odds with some of the
Agency’s binding factual findings — render it an inappropriate basis
for interfering with those findings and the Agency’s remedial responses.
[235] [238‑239] [242] [245]
Per Binnie, Deschamps,
Fish and Rothstein JJ. (dissenting): When the relevant factors
of the pragmatic and functional approach are properly considered, the standard
of review applicable to the issues of the Agency’s jurisdiction to adjudicate
CCD’s application and the Agency’s determination of the applicable human rights
law principles in the federal transportation context is correctness.
These issues are pure questions of law, and the Agency is not protected by a
privative clause in respect of questions of law or jurisdiction. Rather, there
is a statutory appeal procedure on such questions under s. 41(1) of the CTA .
On questions of jurisdiction and the determination of the applicable human
rights law principles, the Agency does not have greater relative expertise than
a court. Nor do these questions involve a balancing of interests. [281‑286]
The Agency did not exceed its jurisdiction. Under
s. 172(1) of the CTA , the Agency has jurisdiction where an application
is made to it, and its inquiry is to be directed to determining whether there
is an undue obstacle. There is nothing to prevent the Agency from initiating
an inquiry based on an application from a public interest group as long as the
alleged obstacle exists. Given that the Renaissance cars had already been
acquired by VIA, the inquiry into alleged obstacles in those cars was not
beyond the Agency’s jurisdiction. Further, the Agency did not lose
jurisdiction when its inquiry extended past the 120‑day deadline provided
for in s. 29(1) of the CTA . When applied to s. 172
proceedings, this deadline is directory, not mandatory. Lastly, while the
Agency’s exercise of its regulatory power is subject to more stringent
oversight than the exercise of its adjudicative power, the Agency is given
broad and pervasive jurisdiction under Part V of the CTA . It may
not have been Parliament’s expectation that broad inquiries would be conducted
under s. 172 , but the words used do not preclude such adjudications, even
though they might impose a significant burden on the carrier. [315] [317]
[321] [323‑324]
Part V of the CTA , which grants the Agency
jurisdiction to deal with undue obstacles to the mobility of persons with
disabilities, must be reconciled with prevailing human rights principles.
Applying those principles in the federal transportation context, the Agency is
required, in adjudicating applications under s. 172 , to conduct an
undueness analysis: (1) the applicant must satisfy the Agency
of the existence of a prima facie obstacle to the mobility of persons
with disabilities; and (2) the burden then shifts to the carrier to
demonstrate, on a balance of probabilities, that the obstacle is not undue
because (i) it is rationally connected to a legitimate objective,
(ii) the carrier has opted not to eliminate the obstacle based on an
honest and good faith belief that it was necessary for the fulfilment of that
legitimate objective, and (iii) not eliminating the obstacle is reasonably
necessary for the accomplishment of that legitimate objective. [291] [293]
[297]
In this case, the Agency erred in law with respect to
the test for determining the undueness of an obstacle. Although the Agency did
discuss some of the principles in the abstract, its analysis reveals that most
of the applicable principles were excluded from its reasoning. The Agency did
not acknowledge that it was required to identify the goals pursued by VIA in
purchasing the cars; nor did it state whether it accepted VIA’s argument and
evidence that the acquisition of the cars was rationally connected to a
legitimate purpose. VIA was attempting to operate within the subsidy allocated
by the federal government for the purchase of rail cars. Efficiency and
economic viability are objectives of the National Transportation Policy under
s. 5 of the CTA and must be considered legitimate. Moreover, the
acquisition of the Renaissance cars for $130 million was rationally
connected to these objectives. The error at this stage was compounded at
the second stage by the Agency’s failure to identify VIA’s motives and to
assess the evidence relevant to good faith belief. At the third stage, the
Agency did not consider how the obstacles might be circumvented by network
alternatives that would accommodate persons with disabilities, but focussed
only on the Renaissance cars themselves. The basis of the Agency’s
rejection of the network as a reasonable alternative was the requirement that
the Renaissance cars be accessible to persons using personal wheelchairs as
provided for in the Rail Code. But the Rail Code and other voluntary codes of
practice cannot be elevated to the status of laws as if they were legally
binding regulations. In adopting the Rail Code and personal wheelchair
accessibility standards as if they were regulatory requirements, the Agency
failed to consider the full range of reasonable alternatives offered through
the network and thereby erred in law. Furthermore, the third stage also requires
the Agency to balance the significance of the obstacles for the mobility of
persons with disabilities against other factors, such as structural constraints
and the total estimated cost to remedy the obstacles, having regard to the
objective of economic viability. Where cost constraints are at issue in an
undueness analysis, it is an error of law for the Agency not to determine a
total cost estimate for the corrective measures it orders. Although the
Agency provided figures and calculations in respect of certain corrective
measures, it never provided its best estimate of the total cost to VIA.
Without a total cost estimate, the Agency could not conduct the undueness
analysis required by s. 172 . The Agency was also dismissive in its
consideration of VIA’s ability to fund the corrective measures, treating VIA’s
resources as virtually unlimited. The Agency’s reasons do not demonstrate the
attention that is required in a case where the cost of the measures is
potentially very substantial. It is up to the Agency, on the basis of new
evidence, to determine the cost of the corrective measures and VIA’s ability to
fund them, and to carry out the balancing exercise required of it at the third
stage of the undueness analysis. [327‑328] [337] [340‑344]
[346] [351‑352] [354‑356] [359] [366]
Cases Cited
By Abella J.
Applied: British
Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999]
3 S.C.R. 3; approved: Canadian National Railway
Co. v. Ferroequus Railway Co., [2002] F.C.J. No. 762 (QL), 2002 FCA
193; referred to: Canadian Pacific Railway Co. v. Canada
(Transportation Agency), [2003] 4 F.C. 558,
2003 FCA 271; Canadian Union of Public Employees, Local 963
v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Pasiechnyk
v. Saskatchewan (Workers’ Compensation Board), [1997]
2 S.C.R. 890; Pushpanathan v. Canada (Minister of Citizenship and
Immigration), [1998] 1 S.C.R. 982; U.E.S., Local 298 v.
Bibeault, [1988] 2 S.C.R. 1048; Barrie Public Utilities v.
Canadian Cable Television Assn., [2003] 1 S.C.R. 476,
2003 SCC 28; Law Society of New Brunswick v. Ryan, [2003]
1 S.C.R. 247, 2003 SCC 20; Canada (Attorney General) v.
Public Service Alliance of Canada, [1993] 1 S.C.R. 941; Toronto
(City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77,
2003 SCC 63; National Corn Growers Assn. v. Canada (Import
Tribunal), [1990] 2 S.C.R. 1324; British Columbia
(Superintendent of Motor Vehicles) v. British Columbia (Council of Human
Rights), [1999] 3 S.C.R. 868; Tranchemontagne v. Ontario (Director,
Disability Support Program), [2006] 1 S.C.R. 513,
2006 SCC 14; Winnipeg School Division No. 1 v. Craton, [1985]
2 S.C.R. 150; Commission scolaire régionale de Chambly v. Bergevin,
[1994] 2 S.C.R. 525; Eldridge v. British Columbia (Attorney General),
[1997] 3 S.C.R. 624; Canadian National Railway Co. v. Canada
(Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Central
Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970; Central
Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990]
2 S.C.R. 489; Ontario Human Rights Commission v. Borough of
Etobicoke, [1982] 1 S.C.R. 202; Ontario Human Rights Commission v.
Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Howard v.
University of British Columbia (1993), 18 C.H.R.R. D/353; Brock
v. Tarrant Film Factory Ltd. (2000), 37 C.H.R.R. D/305; Quesnel
v. London Educational Health Centre (1995), 28 C.H.R.R. D/474; Maine
Human Rights Commission v. City of South Portland, 508 A.2d 948
(1986); Quebec (Commission des droits de la personne et des droits de la
jeunesse) v. Montréal (City), [2000] 1 S.C.R. 665,
2000 SCC 27; VIA Rail Canada Inc. v. National Transportation
Agency, [2001] 2 F.C. 25; Application by Yvonne Gaudet, on
behalf of Marcella Arsenault, CTA Decision No. 641‑AT‑R‑1998,
December 29, 1998; Hutchinson v. British Columbia (Ministry of Health)
(No. 4) (2004), 49 C.H.R.R. D/348, 2004 BCHRT 58; Baker
v. Canada (Minister of Citizenship and Immigration), [1999]
2 S.C.R. 817; Gateway Packers 1968 Ltd. v. Burlington Northern
(Manitoba) Ltd., [1971] F.C. 359; Allied Auto Parts Ltd. v.
Canadian Transport Commission, [1983] 2 F.C. 248.
By Deschamps and Rothstein JJ. (dissenting)
Canada (Deputy Minister of National Revenue) v.
Mattel Canada Inc., [2001] 2 S.C.R. 100,
2001 SCC 36; Law Society of New Brunswick v. Ryan, [2003]
1 S.C.R. 247, 2003 SCC 20; Mattel, Inc. v. 3894207
Canada Inc., [2006] 1 S.C.R. 772, 2006 SCC 22; Dr. Q
v. College of Physicians and Surgeons of British Columbia, [2003]
1 S.C.R. 226, 2003 SCC 19; VIA Rail Canada Inc. v.
National Transportation Agency, [2001] 2 F.C. 25; Canada
(Director of Investigation and Research) v. Southam Inc., [1997]
1 S.C.R. 748; Chieu v. Canada (Minister of Citizenship and
Immigration), [2002] 1 S.C.R. 84, 2002 SCC 3; British
Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999]
3 S.C.R. 3; British Columbia (Superintendent of Motor Vehicles) v.
British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868; Central
Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990]
2 S.C.R. 489; Commission scolaire régionale de Chambly v. Bergevin,
[1994] 2 S.C.R. 525; Shell Canada Ltd. v. Canada, [1999]
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Co., [2002] F.C.J. No. 762 (QL), 2002 FCA 193; Ainsley
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(3d) 104.
Statutes and Regulations Cited
Americans with Disabilities Act, 42 U.S.C. § 12162 (2000).
Americans with Disabilities Act
Accessibility Guidelines for Transportation Vehicles, 36 CFR Part 1192 (1999).
Americans With Disabilities Act
(ADA) Accessibility Guidelines for Transportation Vehicles; Final Guidelines, 56 Fed. Reg. 45530 (September 6, 1991).
Canada Transportation Act, S.C. 1996, c. 10, ss. 5 , 17 , 20 , 25 , 25.1 , 27(1) ,
28(2) , 29 , 31 , 32 , 33(1) , 36 , 40 , 41(1) , 170(1) , 171 , 172 .
Canadian Charter of Rights and
Freedoms .
Canadian Human Rights Act, R.S.C. 1985, c. H‑6, ss. 5 (a), 15 .
Disability Discrimination Act
1995 (U.K.), 1995, c. 50, s. 46.
Disability Standards for
Accessible Public Transport 2002 (Austl.).
Financial Administration Act, R.S.C. 1985, c. F‑11 .
National Transportation Act,
1987, R.S.C. 1985, c. 28
(3rd Supp.).
National Transportation Agency
General Rules, SOR/88‑23, s. 8.
Rail Vehicle Accessibility
Regulations 1998, S.I. 1998/2456.
Rules of the Supreme Court of
Canada, SOR/2002‑156, r. 29(3).
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APPEAL from a judgment of the Federal Court of Appeal
(Décary, Sexton and Evans JJ.A.), [2005] 4 F.C.R. 473,
251 D.L.R. (4th) 418, 330 N.R. 337, [2005] F.C.J. No. 376
(QL), 2005 FCA 79, setting aside decisions of the Canadian Transportation
Agency. Appeal allowed, Binnie, Deschamps, Fish and Rothstein JJ.
dissenting.
David Baker and Sarah
Godwin, for the appellant.
John A. Campion, Robin P. Roddey, Annie M. K. Finn
and Carole Mackaay, for the respondent.
Inge Green and Elizabeth Barker,
for the intervener the Canadian Transportation Agency.
Leslie A. Reaume and Philippe Dufresne, for the intervener the Canadian
Human Rights Commission.
Written submissions only by Hart Schwartz,
Eric del Junco and Sylvia Davis, for the
intervener the Ontario Human Rights Commission.
Written submissions only by Béatrice Vizkelety
and Stéphanie Fournier, for the intervener Commission des droits de
la personne et des droits de la jeunesse.
Written submissions only by Sarah Lugtig,
for the interveners the Manitoba Human Rights Commission and the Saskatchewan
Human Rights Commission.
Written submissions only by Debra
M. McAllister and Lana Kerzner, for the interveners
Transportation Action Now, the Alliance for Equality of Blind Canadians, the
Canadian Association for Community Living and the Canadian Hard of Hearing
Association.
Written submissions only by David Shannon
and Paul‑Claude Bérubé, for the intervener the Canadian
Association of Independent Living Centres.
Written submissions only by Melina Buckley
and Fiona Sampson, for the intervener the DisAbled Women’s Network
Canada.
The judgment of McLachlin C.J. and Bastarache, LeBel,
Abella and Charron JJ. was delivered by
1
Abella J. — This appeal
raises questions about the degree to which persons who use wheelchairs can be
self-reliant when using the national rail network.
2
Under the Canada Transportation Act, S.C. 1996, c. 10 , it is
declared to be “National Transportation Policy” that Canada’s transportation
services be accessible to persons with disabilities. Responsibility for
determining whether there is an “undue obstacle” to the mobility of persons
with disabilities is assigned by the Act to the Canadian Transportation
Agency. Where such obstacles are found to exist, the Agency is also
responsible for determining what corrective measures are appropriate in
accordance with the Act and human rights principles.
3
In 1998, VIA Rail Canada Inc. took part in the negotiation and drafting
of a voluntary Rail Code. The Code stipulated that for new or substantially
refurbished rail cars, at least one car on each train should be accessible to
persons using their own wheelchairs.
4
To replace its existing fleet, in late 2000 VIA purchased 139 rail cars
and car parts no longer required for overnight train service through the
Channel Tunnel. These rail cars, known then as the “Nightstock” fleet, were
renamed the “Renaissance cars” by VIA. None of the cars was accessible to
persons with disabilities using personal wheelchairs.
5
In the course of the proceedings before the Agency lasting almost three
years, and contrary to the Agency’s directions, VIA unilaterally made
modifications to the new cars without the prior approval of the Agency. VIA
was also repeatedly asked to provide cost estimates so that the Agency could
assess whether the remedial measures it was considering were reasonable. VIA
consistently took the position that it had neither the time nor the money to
prepare extensive cost estimates, several times asking the Agency to make its
decision without these estimates.
6
The Agency, persuaded by VIA to issue its final decision without further
cost estimates, ordered changes to 30 of the 139 newly purchased cars so that
one car per train would be accessible to persons with disabilities using their
own wheelchairs.
7
Thirty-seven days after the Agency issued its final decision, VIA
presented newly prepared cost estimates to the Federal Court of Appeal as part
of its leave application. Because VIA chose not to provide this information to
the Agency during the proceedings, these estimates were not assessed or
verified.
8
The Agency, an expert and specialized body, carefully considered the evidence
and the law before imposing a remedy that was consistent both with the Rail
Code and internationally accepted standards. In determining whether the design
of the Renaissance cars represented undue obstacles for persons with
disabilities, the Agency took into account factors usually associated with an
“undue hardship” analysis, such as cost, economic viability and safety. In so
doing, the Agency was properly merging human rights principles with its unique
statutory mandate. I would not interfere with its decision.
I. Background
9
VIA finalized the purchase of the Renaissance fleet on December 1, 2000
and accepted delivery in 2001. At the time VIA acquired the rights to them,
the cars were in various stages of assembly: 64 cars were fully assembled,
construction had started on another 24, and the remaining 51 were unassembled.
VIA saw the Renaissance fleet as a unique opportunity to substantially increase
the size of its fleet at a comparatively moderate cost. It paid $29.8 million
to purchase the Renaissance equipment, initially expecting that it would cost
an additional $100 million to prepare the equipment for service, making a total
estimated cost of $129.8 million. At the time of the purchase, VIA’s capital
expenditure budget was $401.9 million.
10
VIA’s anticipated costs included the cost of transporting the cars and
parts to Canada, weatherproofing the cars, modifying brake and electrical
systems, removing redundant component parts, and renovating interiors. The
interior changes included expanding lounge facilities for passengers by
removing interior offices, adding vending machines, decommissioning one
washroom in the coach cars to create additional baggage storage space,
installing computer receptacles and a coat valet in the first class (“VIA 1”)
cars, adding refrigeration equipment to the service cars to provide the current
level of VIA 1 service, and removing one seat in each coach car to install a
coat valet. The total cost of the Renaissance cars grew to $139 million.
11
There was no “plan document” to enhance accessibility when the cars were
purchased. VIA’s position was that the cars were sufficiently accessible.
Instead of renovations that would enable passengers with personal wheelchairs
to independently meet their own needs, VIA proposed that its employees would transfer
passengers into on-board wheelchairs, deliver their meals, assist them with the
use of washroom facilities, and provide other necessary services. VIA argued
that its budget for the acquisition of the Renaissance cars did not provide
“for any major redesign or reconstruction” to make the cars more accessible
because any such substantial changes would have “diminished or negated the
value of the opportunity”.
12
On November 16, 2000, government officials and members of groups
representing persons with disabilities were permitted to inspect demonstration
models of the Renaissance cars.
13
On December 4, 2000, the Council of Canadians with Disabilities (“CCD”)
applied to the Agency under s. 172 of the Canada Transportation Act
complaining about the lack of accessibility of the Renaissance cars. The
relevant portions provide:
172. (1) 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 obstacle to the mobility of
persons with disabilities.
.
. .
(3) On determining that there is an undue
obstacle to the mobility of persons with disabilities, the Agency may require
the taking of appropriate corrective measures or direct that compensation be
paid for any expense incurred by a person with a disability arising out of the
undue obstacle, or both.
14
The Agency’s mandate to address undue obstacles to the mobility of
persons with disabilities originates in s. 5 of the Canada Transportation
Act , which states that this mandate is an essential element of
transportation services:
national
transportation policy
5. [Declaration] It is hereby declared
that a safe, economic, efficient and adequate network of viable and effective
transportation services accessible to persons with disabilities and that
makes the best use of all available modes of transportation at the lowest total
cost is essential to serve the transportation needs of shippers and travellers,
including persons with disabilities, and to maintain the economic
well-being and growth of Canada and its regions and that those objectives are
more likely to be achieved when all carriers are able to compete, both within
and among the various modes of transportation, under conditions ensuring that,
having due regard to national policy, to the advantages of harmonized federal
and provincial regulatory approaches and to legal and constitutional
requirements,
.
. .
(g) each carrier or mode of transportation, as far as is
practicable, carries traffic to or from any point in Canada under fares,
rates and conditions that do not constitute
.
. .
(ii) an undue obstacle to the mobility of persons, including persons
with disabilities,
. . .
15
Under Part V of the Canada Transportation Act , entitled
“Transportation of Persons With Disabilities”, the Agency is granted two
remedial approaches to the removal of “undue obstacles” from the federal
transportation network — regulation-making powers under s. 170(1) and complaint
adjudication powers under s. 172(1) .
16
Section 170(1) empowers the Agency to “make regulations for the purpose
of eliminating undue obstacles in the transportation network”, including
regulations respecting “the design, construction or modification of . . . means
of transportation and related facilities and premises” and the “conditions of
carriage applicable in respect of the transportation of persons with disabilities”.
Under s. 172(1), 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
obstacle to the mobility of persons with disabilities.
17
Where the Agency determines that an undue obstacle to the mobility of
persons with disabilities exists, the Agency may, pursuant to s. 172(3),
require the taking of appropriate corrective measures. Both the Agency’s
regulation-making power and its authority to order remedial measures are
subject to review by the federal Cabinet: ss. 36 and 40 .
18
CCD alleged that 46 features of the Renaissance cars constituted “undue
obstacles” to the mobility of persons with disabilities: the sleeper cars were
not accessible to passengers in wheelchairs; passengers in wheelchairs could
not ride in the economy coach cars; wheelchair users were segregated in sleeper
units adjacent to immigration/prisoner control offices in the service cars,
necessitating the use of narrow on-board wheelchairs; no washroom facilities in
any type of car were accessible to passenger-owned wheelchairs; and the
Renaissance cars offered inadequate accommodation for persons with visual
disabilities and those accompanied by assisting animals.
19
Under the mistaken impression that the cars had not yet been purchased,
CCD also requested an interim order under ss. 27(1) and 28(2) of the Canada
Transportation Act directing VIA not to take any further steps to secure
the purchase of the Renaissance cars. After learning that the cars had already
been purchased, CCD sought to prevent VIA from entering into contracts for, or
undertaking further construction of the Renaissance fleet pending the Agency’s
final decision on its application.
20
CCD relied, in part, on VIA’s alleged non compliance with the 1998 Code
of Practice — Passenger Rail Car Accessibility and Terms and Conditions
of Carriage by Rail of Persons with Disabilities (“Rail Code”), a voluntary
code negotiated with and agreed to by VIA, setting minimum standards applicable
to its transportation network. Under the Rail Code, lower standards are
applied to existing equipment in recognition of the fact that it may be
difficult or impossible for this older equipment to be made to comply with
modern accessibility standards. Higher standards are applied to new rail cars
or cars undergoing a major refurbishment. The most significant of these
standards was that passengers with disabilities be able to use their personal
wheelchairs on the train.
21
VIA’s position before the Agency was that the Renaissance fleet,
including the 75 cars that had yet to be fully assembled, were existing
equipment, not new or undergoing major refurbishment. It argued that, based on
the Rail Code standards that were applicable to existing cars, the new
Renaissance cars were sufficiently accessible to persons with disabilities.
Accordingly, VIA argued it was not required to retrofit them to improve their
accessibility in accordance with the requirements for new cars or cars
undergoing a major refurbishment.
22
VIA asserted, in fact, that the Renaissance cars provided greater travel
options and choice for passengers with disabilities by virtue of the fact that
they were differently accessible than its existing fleet, and that
“persons with disabilities who do not wish to use the Renaissance trains can continue
to use [the] existing fleet for their travel purposes” (CTA Decision No.
175-AT-R-2003, at p. 51).
23
VIA intended, however, to replace the existing fleet with Renaissance
cars on some of its routes starting in 2003.
24
The existing fleet provided one personal wheelchair accessible car per
train. VIA used its VIA 1 cars for this purpose, which had been retrofitted to
accommodate passenger-owned wheelchairs. A dedicated “tie-down” space had been
created.
25
The size of this space was what CCD sought to have made available in the
Renaissance cars because it adequately met the needs of persons with
disabilities. And the washrooms on the VIA 1 cars in the existing fleet,
though significantly smaller in square footage than those in the Renaissance
service cars, had nonetheless been retrofitted to be accessible for personal
wheelchair use. Disabled passengers travelling with assisting animals were
also accommodated on the existing fleet.
II. The Agency Proceedings
A. The Agency’s Inquiry
26
On January 24, 2001, the Agency declined CCD’s application for an
interim order which would affect VIA’s agreement to purchase the Renaissance
cars. However, it sought a commitment from VIA that it would not enter into
any contracts to construct, manufacture or retrofit the Renaissance cars prior
to the Agency’s final decision, and requested full particulars from VIA
respecting its purchase agreement and any additional contracts it entered into
with respect to the cars.
27
In January 2001, VIA filed an incomplete copy of the purchase agreement,
with the financial data redacted, and requested that it be kept confidential.
It advised the Agency that it had not yet entered into any contracts for the
construction, manufacture or retrofitting of the Renaissance cars and
repeatedly maintained that no retrofitting plans would exist until at least
late August 2001. VIA expected a first phase, consisting of 24 Renaissance
cars (“Phase I Renaissance Cars”), to come into service in December 2001, with later
phases to follow as more cars became ready for service.
28
VIA’s expectation that no retrofitting plans would be available until
August 2001 meant that the Agency was unable to complete its investigation of
CCD’s application, filed on December 4, 2000, within the 120 days stipulated in
s. 29(1) of the Canada Transportation Act which states:
29. (1) The Agency shall make its decision
in any proceedings before it as expeditiously as possible, but no later than
one hundred and twenty days after the originating documents are received,
unless the parties agree to an extension or this Act or a regulation made under
subsection (2) provides otherwise.
29
The deadline would have been April 3, 2001. In a decision dated that
day, the Agency noted that the delay was caused by procedural and
jurisdictional matters raised by the parties and by the fact that it was
awaiting the filing of information by VIA, information VIA had indicated was
not yet available. As a result, the Agency determined that it retained jurisdiction
to deal with CCD’s application notwithstanding the expiry of the statutory
deadline. In doing so, the Agency was relying on the Federal Court of Appeal’s
decision in Canadian National Railway Co. v. Ferroequus Railway Co.,
[2002] F.C.J. No. 762 (QL), 2002 FCA 193, which held that s. 29(1) was a
directory, not mandatory, provision.
30
On April 24, 2001, VIA sought leave to appeal the Agency’s decision of
April 3, 2001 to the Federal Court of Appeal. It was granted a stay of the
Agency’s proceedings pending the determination of the leave application.
31
On May 25, 2001, the Thunder Bay Chronicle Journal published an
article stating that VIA had entered into a contract with Bombardier Inc. to
refurbish and modify the Renaissance cars. The text stated that “Bombardier
will refurbish and modify the cars at its plant in Thunder Bay” and cited a
Bombardier spokesperson as saying that the contract was worth $9.8 million,
with another contract in progress. CCD filed this article with the Agency on
May 28, 2001 as evidence that VIA was defying the Agency’s order to provide
information about the timing and details of any proposed construction and
retrofitting plans and sought an interim order suspending the retrofitting process.
The Agency then requested VIA’s comments on the accuracy of the newspaper
article.
32
VIA responded to this request by seeking to have the Agency found in
contempt of the Federal Court of Appeal’s order staying the proceedings. On
June 8, 2001, when the Federal Court of Appeal dismissed VIA’s application for
leave to appeal, VIA withdrew its contempt motion.
33
In a decision dated June 29, 2001, the Agency once again ordered that
VIA file a copy of its contract with Bombardier as well as the schedules to its
purchase agreement which had been omitted from VIA’s original filing. VIA
complied, again requesting that these documents be kept confidential. The
Agency in turn rejected CCD’s request for an interim order suspending the
retrofitting process, but put VIA on notice that, by proceeding with the
Bombardier contract before the Agency had decided what was required, it could
not subsequently complain that the assembly of the cars, and the changes it had
unilaterally made, rendered any decision the Agency might eventually make too
costly.
34
On September 20, 2001, the Agency organized a viewing of the Renaissance
cars in Montreal and, with input from the parties, prepared an Inspection
Report. The Inspection Report was a factual description of the dimensions and
accessibility features of the Renaissance cars and a description of the changes
VIA had unilaterally made.
35
Three types of Renaissance cars were inspected: sleeper cars for
overnight trips, economy coach cars for standard trips and service cars
containing public lounge facilities and an overnight suite intended for
passengers using wheelchairs. The report revealed that as in VIA’s existing
fleet, passengers in wheelchairs of any size were unable to enter or use the
sleeping compartments of standard sleeper cars in the Renaissance fleet. The
width of the corridor was incompatible with the use of standard personal
wheelchairs.
36
The economy coach cars in the Renaissance fleet were found to be less
accessible than VIA’s existing VIA 1 cars, which had been retrofitted to
provide tie-down space that accommodated large personal wheelchairs and had
personal wheelchair accessible washrooms. Personal wheelchairs could only be
accommodated in the retrofitted VIA 1 cars in the existing fleet on day trips,
however, and for overnight trips only if the passenger was content to spend the
night in his or her wheelchair.
37
In the Renaissance cars, personal wheelchairs could not be used
anywhere. Each Renaissance economy car had three washrooms. None was
wheelchair accessible. A “wheelchair tie-down” mechanism, used to secure a
wheelchair to the floor of the car, had been installed. However, the
dimensions of this space did not accommodate standard personal wheelchairs.
Evidence before the Agency suggested that only the smallest wheelchair, the
size of a child’s wheelchair, could actually fit in the tie-down space
provided.
38
In addition, unlike VIA’s existing fleet which permitted passengers with
disabilities to ride with other passengers in VIA 1 coach cars, passengers
using wheelchairs were to be primarily accommodated in service cars in the
Renaissance fleet. Service cars were special cars that had office space and
public lounge facilities where passengers could obtain refreshment services and
store their baggage.
39
There was to be a service car on every train, with a self-contained
sleeper unit separate from the service car’s public passenger lounge. VIA
termed this the “accessible suite”. No part of the service cars, including the
accessible suite, was accessible to passengers using personal wheelchairs, both
because the dimensions of the doors into the “accessible suite” and washroom
were too narrow for a personal wheelchair, and because there was insufficient
space to manoeuver or turn a personal wheelchair even if it could enter.
Passengers’ personal wheelchairs were to be kept in a storage compartment near
the “accessible suite” or, if VIA required that space to refrigerate food and
drink for VIA 1 passengers, in the baggage car.
40
On January 16, 2002, the Agency granted a request from VIA to make oral
submissions before the Agency released its Preliminary Decision. Oral
submissions were heard on April 8, 2002.
41
On June 23, 2002, VIA started using the Renaissance cars.
42
On July 22, 2002, the Agency asked VIA to confirm certain measurements
in the washroom of the “accessible suite”. VIA advised the Agency that the
measurements no longer matched those that had been jointly agreed upon in the
Agency’s Inspection Report.
43
The Agency also learned that VIA had made changes to essential features
of accessibility, including widening two sliding doors in the “accessible
suite” by only 2 or 3 cm. This change, made without the Agency’s prior
knowledge, was insufficient to make the “accessible suite” accessible for
personal wheelchairs, despite the Rail Code standards VIA had agreed to. VIA
asserted that widening the doors to meet Rail Code standards, while possible,
was not reasonable because this would require a “complete re-design of the
door, its pocket and the module that currently houses the control button”, as
well as the removal of sleeping berths.
44
In a decision dated August 14, 2002, the Agency expressed its “extreme
displeasure” at what it likened to concealing evidence, namely “VIA’s failure
to keep the Agency informed of modifications bearing on the very mandate the
Agency is called to exercise” (CTA Decision No. LET-AT-R-232-2002).
45
Because the changes VIA made to the cars without the Agency’s knowledge
created a discrepancy between the information the Agency had about the
Renaissance cars and their actual condition, the Agency undertook a second
inspection of the cars on September 16, 2002. This inspection revealed that in
addition to the slightly widened doors, VIA had made a number of other changes
to the Renaissance cars, including an expansion of the lounge area in the
service cars. Because some measurements were disputed by the parties, a third
inspection of the cars took place on November 26, 2002.
B. The Agency’s Preliminary Decision
(No. 175-AT-R-2003)
46
On March 27, 2003, the Agency issued a detailed Preliminary Decision of
150 pages. It was premised on the goal of having one accessible car per train.
47
The Agency’s Preliminary Decision took the form of a “show cause”
order. By this order, VIA was asked to “show cause” by May 26, 2003, why the
obstacles the Agency had identified as potentially undue were not, in fact,
undue obstacles. The Agency’s show cause process was the methodology it used
for assessing the hardship VIA might suffer if it were required to remove the
obstacles.
48
The Agency identified five key problems with the Renaissance fleet, most
of them in areas of the cars VIA itself had specifically targeted to meet the
needs of passengers with disabilities. These problems led the Agency to
identify 14 obstacles as being potentially undue.
49
The show cause process served two critical functions. First, it gave
VIA a “final opportunity to provide specific evidence and related argument to
show cause to the Agency” why the 14 obstacles it had identified were not undue
and to provide feasibility and costing information relating to the remedial
options under consideration by the Agency (p. 5). VIA had, until then,
provided only general information about its operational, economic and
structural requirements. The Agency noted that “there may be specific
arguments that VIA may wish to bring forward in view of the Agency’s
preliminary findings” (p. 144).
50
Second, VIA was also asked to file answers to specific questions the
Agency had about what remedial measures were structurally, economically and
operationally possible. This gave VIA an opportunity to participate with the
Agency in the accommodation of passengers with disabilities by identifying
potential solutions, commenting on solutions CCD had proposed and developing a
remedial plan.
51
In addition to its detailed analysis in its Preliminary Decision of the
need for accessibility-enhancing measures, such as wheelchair tie-down spaces
and accessible washrooms, the Agency stressed the importance of ensuring that
persons with disabilities be capable of accessing features specifically
designed to meet their needs in their own wheelchairs. Subject to structural
and economic constraints, it was the Agency’s opinion that “it is unacceptable
that a person with a disability be deprived of his/her independent means of
mobility in an area of the Renaissance trains that is intended to be used by
persons with disabilities, including those who use wheelchairs” (p. 109).
52
VIA sought leave to appeal the Agency’s Preliminary “show cause”
Decision in April 2003.
53
While VIA’s application for leave to appeal was pending, it responded to
the Agency’s “show cause” order with a three-page letter on May 26, 2003. In
its opinion, “it is not reasonable to require VIA Rail to modify the cars”.
54
VIA began by addressing some of CCD’s safety concerns for persons with
disabilities, pointing out that “the Equipment and Operations Branch of the
Railway Safety Directorate has determined that there is no safety issue with
respect to the Renaissance Cars”.
55
VIA estimated that “the total cost and lost revenue of completing the
work identified in the show cause directions is over $35 million”. This was,
VIA wrote, its “best estimate in answering the show cause portion of the
hearing”. It also stated that it “has back-up for the estimates of cost”, but
it submitted no such evidence with its response.
56
On May 29, 2003, three days after VIA’s response to the show cause
order, CCD wrote to the Agency advising it that, contrary to VIA’s assertions
that there were no safety issues to address, the Transport Canada Rail Safety
Directorate had ordered VIA to relocate washrooms in the Renaissance economy
coach cars because they were located in an unsafe “crumple zone”. While no
final decisions had been made concerning how the mandatory modifications would
be accomplished, CCD told the Agency that Transport Canada had approved three
possible remedial designs. One involved the installation of an accessible
washroom in each coach car (“Option 3”). CCD was told, however, that VIA
intended to implement a different, less costly design that did not enhance the
accessibility features of the coach cars (“Option 1”).
57
On June 9, 2003, the Agency issued a decision advising VIA that its May
26, 2003 response to the Preliminary Decision lacked detail and supporting
evidence and could not be verified. As part of this decision, the Agency
reissued its original show cause order, giving VIA an additional 60 days to
prepare a response.
58
It also made two additional requests of VIA, each with its own
deadline. First, VIA was asked to submit, by June 13, 2003, the “back-up”
evidence for the cost estimates it had failed to include in its response to the
Agency’s show cause order. Second, VIA was asked to address, by June 23, Option
3 being considered by Transport Canada and “show cause” why it could not be
implemented.
59
By July 3, 2003, both of these deadlines had passed with no response
from VIA. The “back-up” evidence VIA told the Agency it had in its May 26th
letter, was not provided. VIA also failed to submit any evidence to show why
Option 3 should not be implemented.
60
As it was entitled to do under its enabling statute, the Agency turned
its June 9, 2003 reissued Preliminary Decision into an order of the Federal
Court. The Agency informed VIA that it would commence proceedings for contempt
if VIA did not submit, by July 14, 2003, the additional information the Agency
had requested. VIA was still to respond to the original show cause order by
the extended deadline, namely August 8, 2003.
61
VIA responded on July 14, 2003. It submitted back-up evidence for the
cost estimates pertaining to the arm rest and tie-down area modifications the
Agency was contemplating. It also submitted copies of the three design plans
for Options 1, 2 and 3 that it had devised for Transport Canada, as well as a
chart outlining the pros and cons associated with each.
62
No precise costing information was provided to the Agency about these
options, but the documentation stated that Option 3, which would add a
wheelchair accessible washroom to the Renaissance coach cars, would cost two
and a half times as much as Option 1. VIA claimed in a single paragraph that
Option 3 could not be implemented because a more detailed design was still
required, that there would likely be a prohibitive loss of revenue of $24.2
million, and that the direct implementation costs had not been quantified but
that, in any event, VIA could not afford them.
63
VIA told the Agency that it planned to implement Option 1 in the fall of
2003. Option 1, the least expensive solution, would replace the unsafe
washrooms with a coat valet.
64
VIA also told the Agency that it was unable to comply with the show
cause order any further. It asserted that it lacked the internal expertise to
respond to the Agency’s Preliminary Decision, that it would take longer than 60
days to have cost estimates prepared, and that the government had not provided
funding for it to respond to the Agency’s requests.
65
VIA did not request more time to comply.
66
On August 7, 2003, VIA again indicated to the Agency that there would be
no further compliance with its Preliminary Decision. It wrote: “VIA Rail makes
the following submissions respectfully. It asks for an oral hearing, if
necessary. Otherwise, it asks the Agency to consider all of these issues,
facts and estimates and render its decision in final form.”
67
The Agency declined to exercise its discretion to hold a second oral
hearing because “VIA has not demonstrated that there is any value to be gained
from pursuing the time-consuming and costly exercise of convening an oral
hearing at this time, either to permit VIA to explain why it did not provide
the supporting evidence required or to provide to VIA an opportunity to produce
evidence that should have been submitted in writing, either during the
pleadings process or in response to the show cause orders” (Final Decision, at
p. 14).
C. The Agency’s Final Decision (No.
620-AT-R-2003)
68
In the face of VIA’s persistent refusal to provide the necessary
estimates and responses, despite having had from March 27 until August 8 to do
so, and in the absence of any request from VIA for more time to prepare
information, the Agency acceded to VIA’s request and, on October 29, 2003,
issued its final decision based on the record before it.
69
In its final decision, authored by Members Marian L. Robson and Michael
Sutton, the Agency ordered VIA to implement six remedial measures, five of
which involved making physical changes to the Renaissance cars with cost
implications. All had been identified by the Agency by the time it reissued
its Preliminary Decision on June 9, 2003:
· In order to make one car in
every daytime train accessible to passengers using their own wheelchairs, VIA
was ordered to install an accessible washroom and a tie-down space for
passengers using wheelchairs in 13 economy coach cars (i.e. implement Option
3).
· In order to provide one car with
accessible sleeping accommodation in each overnight train, VIA was ordered to
widen one doorway and install a mechanism that would secure a passenger’s own
wheelchair to the floor (a “wheelchair tie-down”) in the segregated sleeper
unit in each of the 17 “service cars” that housed the “accessible suite”.
· The Agency also directed VIA to
implement in more cars several of the changes it had already made or begun to
make. These changes — lowering one double seat in 33 economy cars, installing
two moveable armrests in 47 coach cars, and closing stair risers on 12 cars —
would accommodate passengers travelling with animals to assist them, passengers
able and willing to be transferred into standard coach seating, and passengers
who might have difficulty navigating the entry stairs.
70
The Agency determined that the net cost to VIA of addressing Transport
Canada’s safety concerns in a way that could make 13 economy coach cars
accessible for personal wheelchair use would be no more than $673,400 in direct
costs plus $16,988 in lost passenger revenue.
71
This was the most significant remedial measure the Agency ordered. The
cost was comparable to what VIA was prepared to incur each year to accommodate
passengers wearing coats.
D. Federal Court of Appeal Proceedings
72
VIA sought leave to appeal the Agency’s preliminary and final decisions.
In support, it submitted a report to the Federal Court of Appeal that it had
commissioned from Peter Schrum of Bombardier Inc. to review the Agency’s final
decision and prepare a global cost estimate of the corrective measures ordered
by the Agency. Mr. Schrum’s report estimated that the cost of implementing the
Agency’s final decision would be at least $48 million. The report was dated
December 5, 2003, less than 40 days from the Agency’s final decision. Leave
was granted on March 10, 2004.
73
The Federal Court of Appeal unanimously agreed that the Agency’s
identification of undue obstacles to the mobility of persons with disabilities
was reviewable on a standard of patent unreasonableness ([2005] 4 F.C.R. 473,
2005 FCA 79). Sexton J.A. (Décary J.A. concurring) concluded that, based on its
expertise, its mandate, and the presence of a strong privative clause, the
Agency was entitled to a high level of deference. In reasons concurring in the
result, Evans J.A. agreed that the multiplicity of factors and interests to be
weighed, the technical aspects to some issues before the Agency, and the
Agency’s obligation to exercise discretion based on the evidence and statutory
criteria, all fell within its specialized mandate and warranted considerable
deference.
74
Sexton J.A. concluded, however, that the Agency was subject to a
correctness standard in its interpretation of its authority to entertain CCD’s
application under s. 172 , a provision in the Agency’s enabling legislation that
he concluded raised a jurisdictional issue. He determined that the Agency’s authority
to proceed under s. 172 , in the absence of a complaint based on an actual
travel experience, raised a question of statutory interpretation within the
expertise of the courts, not of the Agency, because it implicated human
rights. In Sexton J.A.’s view, these factors, including the presence of a
statutory right of appeal with leave, indicated that the Agency’s
interpretation of its jurisdiction under s. 172 was reviewable on the less
deferential standard of correctness.
75
The Federal Court of Appeal was unanimous in its conclusion that the
Agency was correct to conclude that it had jurisdiction under s. 172 to proceed
with CCD’s complaint.
76
On the issue of how the Agency applied its jurisdiction under s. 172 ,
however, Sexton J.A. criticized the Agency’s findings that obstacles in the
Renaissance cars were undue. He concluded that the decision was made without
considering VIA’s entire network, the interests of non-disabled persons, and
the interests of persons with disabilities other than wheelchair users. He
disagreed with the Agency’s conclusion that there was no evidence in the record
to support VIA’s view that its existing network was able to address obstacles
in the Renaissance cars. He noted that, while the Agency explicitly stated
that it was attempting to strike an appropriate balance between the rights of
persons with disabilities and those of transportation service providers in
accordance with s. 5 of the Canada Transportation Act , it had not
properly balanced the competing interests when it decided that structural
modifications to the Renaissance cars were the appropriate remedy. Holding the
decision to be patently unreasonable, Sexton J.A. set it aside and
referred the matter back to the Agency for reconsideration.
77
Evans J.A. was “not persuaded . . . that, having considered VIA’s
submissions regarding its network, the Agency committed reversible error when
it concluded in the preliminary decision that the obstacles to the mobility of
persons in wheelchairs presented by the Renaissance cars were ‘undue’” (para.
98). In his view, the Agency was entitled to conclude that the evidence did
not establish that the existing fleet or network would address the obstacles
that it had found to exist in the Renaissance cars. The evidence showed that,
over time, the existing fleet would be retired; no Renaissance cars were
accessible to personal wheelchair users; and VIA’s estimates of the number of
passengers affected were misleadingly low because they failed to take into
account the number of disabled passengers who would use VIA if it were more
accessible.
78
Noting that review for patent unreasonableness does not permit a
reviewing court to intervene just because it would have weighed the relevant
factors and evidence differently, Evans J.A. was of the view that the Agency’s
balancing choices were not patently unreasonable based on the evidence before
it.
79
However, the Federal Court of Appeal was unanimous in its view that,
having identified the modifications it thought necessary, the Agency violated
VIA’s procedural fairness rights by failing to give VIA an adequate opportunity
to respond to the Agency’s requests for cost and feasibility information.
80
VIA had not directly raised this procedural fairness argument before the
Federal Court of Appeal. What it had advanced, as one of its grounds of
appeal, was that the Agency had erred in law by identifying obstacles as
“undue” before VIA had obtained expert evidence assessing the cost of remedial
measures. Its procedural fairness argument was a separate ground, and
pertained only to the Agency’s refusal to hold a second oral hearing, an
argument which was rejected by the majority. Sexton J.A. was of the view that
the Agency had the right to exercise its discretion in deciding whether to
grant an oral hearing.
81
In reaching the conclusion that VIA’s right to procedural fairness had
been violated when the Agency issued a final decision without giving VIA an
opportunity to provide cost estimates, the Federal Court of Appeal blended VIA’s
discrete grounds of appeal to find a breach of procedural fairness.
82
The court accordingly allowed VIA’s appeal and remitted the matter to
the Agency for reconsideration in accordance with both the network-based
analysis endorsed by the majority and the “fresh evidence”, namely the Schrum
report, adduced by VIA on appeal.
III. Analysis
A. Standard of Review
83
The Agency’s decision was that there were undue obstacles to the
mobility of persons with disabilities in VIA’s Renaissance fleet and it ordered
that remedial steps be taken to correct the problems it identified. In so
doing, the Agency was proceeding under ss. 172(1) and 172(3) of the Canada
Transportation Act , reproduced here for ease of reference:
172. (1) 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
obstacle to the mobility of persons with disabilities.
.
. .
(3) On determining that
there is an undue obstacle to the mobility of persons with disabilities, the Agency
may require the taking of appropriate corrective measures or direct that
compensation be paid for any expense incurred by a person with a disability
arising out of the undue obstacle, or both.
84
VIA had argued that the Agency lacked jurisdiction under s. 172(1) to
inquire into any complaint that was not based on an actual travel experience.
The majority in the Federal Court of Appeal accepted VIA’s characterization of
s. 172(1) as jurisdiction-limiting because it turned on questions of statutory
interpretation and human rights.
85
In Sexton J.A.’s view, s. 172 , as part of Part V of the Canada
Transportation Act , was one of several provisions that “have a human rights
aspect to them”, calling for a “lower level of deference” (para. 25).
86
Sexton J.A. relied on Canadian Pacific Railway Co. v. Canada
(Transportation Agency), [2003] 4 F.C. 558, 2003 FCA 271, to draw a
distinction between the Agency’s expertise in regulatory matters and its
expertise addressing human rights. In his view, the Agency’s authority to
proceed with CCD’s complaint was an issue implicating the protection of human
rights that turned on statutory interpretation outside the Agency’s area of
expertise. He determined that these factors, including the presence of a
statutory right of appeal with leave, indicated that the Agency’s
interpretation of its jurisdiction under s. 172 was reviewable on the less
deferential standard of correctness, thereby enabling the court to substitute
its view of the correct answer for that of the Agency.
87
As previously noted, the Federal Court of Appeal was, however, unanimous
in its conclusion that the Agency had correctly concluded that it had
jurisdiction under s. 172 to proceed with CCD’s complaint.
88
The Federal Court of Appeal also concluded that the standard for
reviewing the Agency’s decision on the issue of whether an obstacle is undue,
is patent unreasonableness. I agree. I do not, however, share the majority’s
view that VIA raised a preliminary, jurisdictional question falling outside the
Agency’s expertise that was, therefore, subject to a different standard of
review. Applying such an approach has the capacity to unravel the essence of
the decision and undermine the very characteristic of the Agency which entitles
it to the highest level of deference from a court — its specialized expertise.
It ignores Dickson J.’s caution in Canadian Union of Public Employees, Local
963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, that courts “should
not be alert to brand as jurisdictional, and therefore subject to broader
curial review, that which may be doubtfully so” (p. 233).
89
If every provision of a tribunal’s enabling legislation were treated as
if it had jurisdictional consequences that permitted a court to substitute its
own view of the correct interpretation, a tribunal’s role would be effectively
reduced to fact-finding. Judicial or appellate review will “be better informed
by an appreciation of the views of the tribunal operating daily in the relevant
field”: D. Mullan, “Tribunals and Courts — The Contemporary Terrain: Lessons
from Human Rights Regimes” (1999), 24 Queen’s L.J. 643, at p. 660. Just
as courts “should not be alert to brand as jurisdictional, and therefore
subject to broader curial review, that which may be doubtfully so”, so should
they also refrain from overlooking the expertise a tribunal may bring to the
exercise of interpreting its enabling legislation and defining the scope of its
statutory authority.
90
Section 172 is part of the Agency’s enabling legislation, the
authorizing framework assigning responsibility to the Agency, and in which it
is expected to apply its expertise. It is a clear example of a provision that
reflects “a conscious and clearly-worded decision by the legislature to use a
subjective or open-ended grant of power [which] has the effect of widening the
delegate’s jurisdiction and therefore narrowing the ambit of judicial review of
the legality of its actions”: D. P. Jones and A. S. de Villars, Principles
of Administrative Law (4th ed. 2004), at p. 140.
91
In Pasiechnyk v. Saskatchewan (Workers’ Compensation Board),
[1997] 2 S.C.R. 890, at para. 18, this Court said:
The test as to whether the provision in question is one that limits
jurisdiction is: was the question which the provision raises one that was
intended by the legislators to be left to the exclusive decision of the Board?
. . . Factors such as the purpose of the statute creating the tribunal, the
reason for its existence, the area of expertise and the nature of the problem
are all relevant in arriving at the intent of the legislature.
This approach,
affirmed by Bastarache J. in Pushpanathan v. Canada (Minister of Citizenship
and Immigration), [1998] 1 S.C.R. 982, at para. 26, reiterates Beetz J.’s
observation in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048,
that:
The concept of the preliminary or collateral
question diverts the courts from the real problem of judicial review: it substitutes
the question “Is this a preliminary or collateral question to the exercise of
the tribunal’s power?” for the only question which should be asked, “Did the
legislator intend the question to be within the jurisdiction conferred on the
tribunal?” [p. 1087]
92
A tribunal with the power to decide questions of law is a tribunal with
the power to decide questions involving the statutory interpretation of its
enabling legislation, whether or not the questions also engage human rights
issues. Bastarache J.’s dissenting reasons note in Barrie Public Utilities
v. Canadian Cable Television Assn., [2003] 1 S.C.R. 476, 2003 SCC 28, at
para. 86, that “the broad policy context of a specialized agency infuses the
exercise of statutory interpretation such that application of the enabling
statute is no longer a matter of ‘pure statutory interpretation’. When its
enabling legislation is in issue, a specialized agency will be better equipped
than a court”. See also Pushpanathan, at para. 37.
93
The Agency’s enabling legislation clearly shows that its interpretation
of its authority to proceed with CCD’s application is a question Parliament
intended to fall squarely within its jurisdiction and expert assessment. Under
s. 172(1), “[t]he Agency may, on application, inquire into a matter in relation
to which a regulation could be made under subsection 170(1) ”. Section 170(1)
gives the Agency discretionary authority to “make regulations for the purpose
of eliminating undue obstacles in the transportation network under the
legislative authority of Parliament”. A list of four particular areas in which
the Agency may make regulations is provided, but this list is not exhaustive.
Instead, Parliament gave the Agency discretionary authority to determine
whether regulations directed toward eliminating undue obstacles in the federal
transportation system could be made, without circumscribing the Agency’s
discretion to identify the specific matters these regulations might address.
94
In accepting CCD’s application, the Agency relied on its express
authority to make regulations respecting “the design, construction or
modification of . . . means of transportation” and the “conditions of carriage
applicable in respect of the transportation of persons with disabilities” under
s. 170(1) (a) and (c) to find that it had jurisdiction to
entertain CCD’s complaint. Since CCD’s application clearly concerned the
“design, construction or modification” of the Renaissance cars and the
“conditions of carriage” confronting persons with disabilities, no
jurisdictional question legitimately arises from this ground of appeal on these
facts. If an experience-based complaint were required to operationalize the
Agency’s adjudicative authority, we would not expect to find authority to make
regulations respecting the “design” or “construction” of rail cars in s.
170(1) (c).
95
The Agency’s authority to entertain CCD’s complaint, in any event,
depended on its own discretionary determination of whether CCD’s complaint
raised an issue for which a regulation directed toward eliminating undue
obstacles could be made. This falls squarely within the Agency’s
jurisdiction. Given that the Agency’s jurisdiction to entertain CCD’s
complaint under s. 172(1) turns almost exclusively on its own discretionary
decision-making, s. 172(1) is a jurisdiction-granting, not
jurisdiction-limiting, provision.
96
It seems to me counterproductive for courts to parse and recharacterize
aspects of a tribunal’s core jurisdiction, like the Agency’s discretionary
authority to make regulations and adjudicate complaints, in a way that
undermines the deference that jurisdiction was conferred to protect. By
attributing a jurisdiction-limiting label, such as “statutory interpretation”
or “human rights”, to what is in reality a function assigned and properly
exercised under the enabling legislation, a tribunal’s expertise is made to
defer to a court’s generalism rather than the other way around.
97
I do not share the view that the issue before the Agency was, as a human
rights matter, subject to review on a standard of correctness. This unduly
narrows the characterization of what the Agency was called upon to decide and
disregards how inextricably interwoven the human rights and transportation
issues are. Parliament gave the Agency a specific mandate to determine how to
render transportation systems more accessible for persons with disabilities.
This undoubtedly has a human rights aspect. But that does not take the
questions of how and when the Agency exercises its human rights expertise
outside the mandate conferred on it by Parliament.
98
The human rights issues the Agency is called upon to address arise in a
particular — and particularly complex — context: the federal transportation
system. The Canada Transportation Act is highly specialized regulatory
legislation with a strong policy focus. The scheme and object of the Act are
the oxygen the Agency breathes. When interpreting the Act, including its human
rights components, the Agency is expected to bring its transportation policy
knowledge and experience to bear on its interpretations of its assigned
statutory mandate: Pushpanathan, at para. 26.
99
The allegedly jurisdictional determination the Agency was being asked to
make, like the “undueness” inquiry, falls squarely within its statutory
mandate. It did not involve answering a legal question beyond its expertise,
but rather requires the Agency to apply its expertise to the legal issue
assigned to it by statute. The Agency, and not a reviewing court, is best
placed to determine whether the Agency may exercise its discretion to make a
regulation for the purpose of eliminating an undue obstacle to the mobility of
persons with disabilities — a determination on which the Agency’s jurisdiction
to entertain applications depends.
100
The Agency is responsible for interpreting its own legislation,
including what that statutory responsibility includes. The Agency made a
decision with many component parts, each of which fell squarely and
inextricably within its expertise and mandate. It was therefore entitled to a
single, deferential standard of review.
101
In any situation where deference is due, “there will often be no single
right answer to the questions that are under review against the standard of
reasonableness. . . . Even if there could be, notionally, a single best answer,
it is not the court’s role to seek this out when deciding if the decision was
unreasonable”: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R.
247, 2003 SCC 20, at para. 51. Just as judicial assessments of what is
reasonable may vary, it is unavoidable that “[w]hat is patently unreasonable to
one judge may be eminently reasonable to another”: Canada (Attorney General)
v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at p. 963.
102
I appreciate that it is a conceptual challenge to delineate the
difference in degrees of deference between what is patently unreasonable and
what is unreasonable. Both, it seems to me, speak to whether a tribunal’s
decision is demonstrably unreasonable, that is, such a marked departure from
what is rational, as to be unsustainable. This issue was, in my view,
persuasively canvassed by my colleague LeBel J. in his concurring reasons in Toronto
(City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63, and requires
no further elaboration here.
103
But whatever label is used to describe the requisite standard of
reasonableness, a reviewing court should defer where “the reasons, taken as a
whole, are tenable as support for the decision” (Ryan, at para. 56) or
“where . . . the decision of that tribunal [could] be sustained on any
reasonable interpretation of the facts or of the law” (National Corn Growers
Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at pp. 1369-70, per
Gonthier J.). The “immediacy or obviousness” to a reviewing court of a
defective strand in the analysis is not, in the face of the inevitable
subjectivity involved, a reliable guide to whether a given decision is
untenable or evidences an unreasonable interpretation of the facts or law.
104
As Wilson J. recognized in National Corn Growers, at pp. 1347-48,
it is the way a tribunal understands the question its enabling legislation asks
it to answer and the factors it is to consider, rather than the specific answer
a tribunal arrives at, that should be the focus of a reviewing court’s inquiry:
[O]ne must begin with the question whether the tribunal’s
interpretation of the provisions in its constitutive legislation that define
the way it is to set about answering particular questions is patently
unreasonable. If the tribunal has not interpreted its constitutive statute in
a patently unreasonable fashion, the courts must not then proceed to a wide
ranging review of whether the tribunal’s conclusions are unreasonable.
To engage in a
wide-ranging review of a tribunal’s specific conclusions when its
interpretation of its constitutive statute cannot be said to be irrational, or
unreasonable, would be an unwarranted trespass into the realm of reweighing and
re-assessing evidence. Where an expert and specialized tribunal has charted an
appropriate analytical course for itself, with reasons that serve as a rational
guide, reviewing courts should not lightly interfere with its interpretation
and application of its enabling legislation.
105
Here, the Agency interpreted its authority to proceed with CCD’s
application under s. 172(1) in a manner that is, to use the pioneering language
of Dickson J., “rationally supported by the relevant legislation”: Canadian
Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., at p.
237. Nothing in the Agency’s enabling legislation compels subjecting any
particular aspect of the Agency’s interpretation of s. 172 to a more searching
review or a reweighing of the factors and evidence the Agency considered.
106
The Agency, to whom the duty of interpreting and applying its broad
regulation-making powers falls, is owed deference in interpreting its own
legislation. It did not reach an unreasonable conclusion respecting its
jurisdiction when it rejected the suggestion that an actual travel-based complaint
was required to trigger its adjudicative authority.
107
I also share the view of Evans J.A. that deference is owed to the
Agency’s application of s. 172 on the merits. Included in its mandate is the
discretion to identify obstacles for persons with disabilities, to decide
whether they are undue and, if they are, what the most appropriate remedy is.
Parliament designated the Agency to interpret and apply its enabling
legislation, select from a range of remedial choices, protect the interests of
the public, address policy issues, and balance multiple and competing
interests.
108
The Agency defined the analytical process inherent in identifying “undue
obstacles” in the federal transportation network in a way that is supported by
the Canada Transportation Act . In expressing its mandate, it stated:
“if the Agency finds that the accommodation provided is not reasonable or falls
short of what is practicable in the circumstances, then the Agency may find an
undue obstacle and may require the taking of corrective measures to eliminate
that undue obstacle” (Preliminary Decision, at p. 20).
109
Viewed as a whole, the Agency’s reasons show that it approached and
applied its mandate reasonably. In particular and most significantly, it
complied substantially with this Court’s directions in British Columbia
(Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3
(“Meiorin”), assessing reasonable accommodation, and applied the correct
burden of proof. While the Agency did not conduct a step-by-step application
of Meiorin, it did apply its guiding principles and adapted them to its
governing statutory mandate. In the absence of specific evidence of undue
hardship, the Agency’s rejection of VIA’s economic arguments was consistent
with this Court’s guidance in British Columbia (Superintendent of Motor
Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R.
868 (“Grismer”), at para. 41, that “impressionistic evidence of
increased expense will not generally suffice”.
110
To redress discriminatory exclusions, human rights law favours
approaches that encourage, rather than fetter, independence and access. This
means an approach that, to the extent structurally, economically and otherwise
reasonably possible, seeks to minimize or eliminate the disadvantages created
by disabilities. It is a concept known as reasonable accommodation.
111
In my view, as I attempt to explain in the balance of these reasons, far
from being unreasonable for the Agency to adopt a frame of reference premised
on achieving personal wheelchair-based accessibility in 13 economy coach cars
and 17 service cars out of the 139 cars VIA purchased, it may well have been
found to be patently unreasonable for the Agency not to do so. Nor did it
violate VIA’s rights to procedural fairness.
B. Was the Agency’s Decision Entitled to
Deference?
112
Part V of the Canada Transportation Act was enacted to confirm
the protection of the human rights of persons with disabilities in the federal
transportation context. The history of this regulatory scheme shows that it
was Parliament’s intention that what is now Part V of the Act be interpreted
according to human rights principles and that “transportation legislation
rather than human rights legislation should be used” to enforce the
accessibility standards provided in the predecessor legislation, the National
Transportation Act, 1987, R.S.C. 1985, c. 28 (3rd Supp.) (House of
Commons Debates, vol. VI, 2nd Sess., 33rd Parl., June 17, 1987, at p. 7273
(Hon. John C. Crosbie)).
113
Amendments made to the National Transportation Act, 1987 affirmed
the government’s intention that transportation legislation “be placed alongside
the other laws of Canada that reflect its tradition for protecting human rights
and values in Canada” (House of Commons Debates, vol. XIII, 2nd Sess.,
33rd Parl., June 17, 1988, at p. 16573 (Hon. Gerry St. Germain)). Parliament’s
decision to use this particular legislation as the source of human rights
protection for persons with disabilities ensures specialized protection,
applying practical expertise in transportation issues to human rights
principles. This both strengthens the protection and enables its realistic
implementation.
114
In Tranchemontagne v. Ontario (Director, Disability Support Program),
[2006] 1 S.C.R. 513, 2006 SCC 14, at para. 26, a majority of this Court
affirmed the presumption that a tribunal can look to external statutes to
assist in the interpretation of provisions in its enabling legislation “because
it is undesirable for a tribunal to limit itself to some of the law while
shutting its eyes to the rest of the law. The law is not so easily
compartmentalized that all relevant sources on a given issue can be found in
the provisions of a tribunal’s enabling statute.” Both Winnipeg School
Division No. 1 v. Craton, [1985] 2 S.C.R. 150, at p. 156, and Tranchemontagne
make clear that human rights legislation, as a declaration of “public policy
regarding matters of general concern”, forms part of the body of relevant law
necessary to assist a tribunal in interpreting its enabling legislation.
115
In Winnipeg School Division, McIntyre J. confirmed that where
there is a conflict between human rights law and other specific legislation,
unless an exception is created, the human rights legislation, as a collective
statement of public policy, must govern. It follows as a natural corollary
that where a statutory provision is open to more than one interpretation, it
must be interpreted consistently with human rights principles. The Agency is
therefore obliged to apply the principles of the Canadian Human Rights Act,
R.S.C. 1985, c. H-6 , when defining and identifying “undue obstacles” in the
transportation context.
116
There is, moreover, a mandatory direction found in s. 171 from
Parliament to the Agency to coordinate its activities with the Canadian Human
Rights Commission to ensure policy, procedural and jurisdictional
complementarity. It states:
171. The Agency and the Canadian Human
Rights Commission shall coordinate their activities in relation to the
transportation of persons with disabilities in order to foster complementary
policies and practices and to avoid jurisdictional conflicts.
117
Section 171 confirms the Agency’s obligation to interpret and apply the Canada
Transportation Act in a manner consistent with the purpose and provisions
of human rights legislation. This means identifying and remedying undue
obstacles for persons with disabilities in the transportation context in a
manner that is consistent with the approach for identifying and remedying
discrimination under human rights law. In practice, this has resulted, as the
Agency noted in its Preliminary Decision, in complaints by persons with
disabilities related to the federal transportation network being referred
regularly by the Canadian Human Rights Commission to the Agency for
investigation and determination.
118
In this case, it is the design of the Renaissance cars that is said to
represent an undue obstacle. Either the actual existence or the planned
existence of an obstacle to mobility can be sufficient to trigger the Agency’s
jurisdiction to inquire into matters relating to design, construction, or
modification of the means of transportation. The applicant is not required to
establish that the obstacle is already part of the federal transportation
system, or that someone has actually experienced an incident relating to the
obstacle.
119
When assessing the scope of an applicant’s right not to be confronted
with undue obstacles to mobility, the Agency is bound by this Court’s decision
in Meiorin. Meiorin defines the balancing required to determine
whether a workplace obstacle or standard unjustifiably infringes human rights
principles. An impugned standard may be justified “by establishing on the
balance of probabilities”:
(1) that the employer adopted the standard for a
purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular
standard in an honest and good faith belief that it was necessary to the
fulfilment of that legitimate work-related purpose; and
(3) that the standard is reasonably necessary to
the accomplishment of that legitimate work-related purpose. To show that the
standard is reasonably necessary, it must be demonstrated that it is impossible
to accommodate individual employees sharing the characteristics of the claimant
without imposing undue hardship upon the employer. [para. 54]
120
The same analysis applies in the case of physical barriers. A physical
barrier denying access to goods, services, facilities or accommodation
customarily available to the public can only be justified if it is “impossible
to accommodate” the individual “without imposing undue hardship” on the person
responsible for the barrier. There is, in other words, a duty to accommodate
persons with disabilities unless there is a bona fide justification for
not being able to do so.
121
The concept of reasonable accommodation recognizes the right of persons
with disabilities to the same access as those without disabilities, and imposes
a duty on others to do whatever is reasonably possible to accommodate this
right. The discriminatory barrier must be removed unless there is a bona
fide justification for its retention, which is proven by establishing that
accommodation imposes undue hardship on the service provider: Commission
scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525 (“Chambly”),
at p. 546.
122
In Eldridge v. British Columbia (Attorney General), [1997] 3
S.C.R. 624, at para. 79, this Court noted that it is “a cornerstone of human
rights jurisprudence . . . that the duty to take positive action to ensure that
members of disadvantaged groups benefit equally from services offered to the
general public is subject to the principle of reasonable accommodation”, which
means “to the point of ‘undue hardship’”. Undue hardship implies that there
may necessarily be some hardship in accommodating someone’s disability, but
unless that hardship imposes an undue or unreasonable burden, it yields to the
need to accommodate.
123
What constitutes undue hardship depends on the factors relevant to the
circumstances and legislation governing each case: Chambly, at p. 546; Meiorin,
at para. 63. The factors informing a respondent’s duty to accommodate “are not
entrenched, except to the extent that they are expressly included or excluded
by statute”: Meiorin, at para. 63.
124
In all cases, as Cory J. noted in Chambly, at p. 546, such
considerations “should be applied with common sense and flexibility in the
context of the factual situation presented in each case”.
125
Yet VIA argues that s. 5 of the Canada Transportation Act ,
whereby the Agency is directed to take matters of cost, economic viability,
safety and the quality of services to all passengers into consideration when it
makes accessible transportation decisions, “stands in stark contrast to the
approach embodied in human rights statutes”. The relevant portions of s. 5 of
the Act are reproduced here for convenience:
5. It is hereby declared that a safe,
economic, efficient and adequate network of viable and effective transportation
services accessible to persons with disabilities and that makes the best use of
all available modes of transportation at the lowest total cost is essential to
serve the transportation needs of shippers and travellers, including persons
with disabilities, and to maintain the economic well-being and growth of Canada
and its regions and that those objectives are most likely to be achieved when
all carriers are able to compete, both within and among the various modes of
transportation, under conditions ensuring that, having due regard to national
policy, to the advantages of harmonized federal and provincial regulatory
approaches and to legal and constitutional requirements,
.
. .
(g) each carrier or mode of transportation, as far as is practicable,
carries traffic to or from any point in Canada under fares, rates and
conditions that do not constitute
.
. .
(ii) an undue obstacle to the mobility of persons, including persons
with disabilities,
.
. .
126
VIA asserts that the duty to accommodate arising under human rights
legislation is not limited by “practicability” because human rights legislation
does not balance competing interests. In VIA’s view, human rights legislation
provides near absolute protection for persons with disabilities, unlike s. 5 of
the Canada Transportation Act , which, VIA submits, was intended to
provide less protection out of greater deference to financial, operational and
other considerations.
127
With respect, this argument misconstrues the objectives and proper
application of human rights principles. The purpose of federal human rights
legislation is to prevent and remedy discrimination: Canadian National
Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R.
1114. In particular, s. 15 of the Canadian Human Rights Act creates a
legal duty to accommodate the needs of persons accessing its protection to the
point of undue hardship. The scope of the right of persons with disabilities
to be free from discrimination will depend on the nature, legitimacy and
strength of the competing interests at stake in a given case. These competing
interests will inform an assessment of what constitutes reasonable
accommodation.
128
A factor relied on to justify the continuity of a discriminatory barrier
in almost every case is the cost of reducing or eliminating it to accommodate
the needs of the person seeking access. This is a legitimate factor to
consider: Central Alberta Dairy Pool v. Alberta (Human Rights Commission),
[1990] 2 S.C.R. 489, at pp. 520-21. But, as this Court admonished in Grismer,
at para. 41, tribunals “must be wary of putting too low a value on
accommodating the disabled”.
129
Section 5 (a) of the Canadian Human Rights Act states that
“[i]t is a discriminatory practice in the provision of goods, services,
facilities or accommodation customarily available to the general public . . .
to deny, or to deny access to, any such good, service, facility or
accommodation”. Section 15 (g) of the Canadian Human Rights Act
provides, however, that it is not a discriminatory practice to deny access to a
good, service, facility or accommodation customarily available to the general
public if “there is bona fide justification for that denial or
differentiation”. In Central Alberta Dairy Pool, at p. 518, this Court
unanimously agreed that “[i]f a reasonable alternative exists to burdening
members of a group with any given rule, that rule will not be bona fide.”
Grismer further elaborated that establishing a bona fide
justification for a prima facie violation of human rights legislation
requires a respondent to show that “the employer or service provider has made
every possible accommodation short of undue hardship” (para. 21). For the
Agency to find that an obstacle denying access to transportation services is
justified, therefore, no reasonable alternative to burdening persons with
disabilities must exist.
130
The jurisprudence of this Court reveals that undue hardship can be
established where a standard or barrier is “reasonably necessary” insofar as
there is a “sufficient risk” that a legitimate objective like safety would be
threatened enough to warrant the maintenance of the discriminatory standard (Ontario
Human Rights Commission v. Borough of Etobicoke, [1982] 1 S.C.R. 202);
where “such steps as may be reasonable to accommodate without undue
interference in the operation of the employer’s business and without undue
expense to the employer” have been taken (Ontario Human Rights Commission v.
Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, at p. 555); where no reasonable
alternatives are available (Central Okanagan School District No. 23 v.
Renaud, [1992] 2 S.C.R. 970); where only “reasonable limits” are imposed on
the exercise of a right (Eldridge, at para. 79); and, more recently,
where an employer or service provider shows “that it could not have done
anything else reasonable or practical to avoid the negative impact on the
individual” (Meiorin, at para. 38). The point of undue hardship is
reached when reasonable means of accommodation are exhausted and only
unreasonable or impracticable options for accommodation remain.
131
Since the Governor in Council has not prescribed standards for assessing
undue hardship as authorized by s. 15(3) of the Canadian Human Rights Act ,
assessing whether the estimated cost of remedying a discriminatory physical
barrier will cause undue hardship falls to be determined on the facts of each
case and the guiding principles that emerge from the jurisprudence. A service
provider’s refusal to spend a small proportion of the total funds available to
it in order to remedy a barrier to access will tend to undermine a claim of
undue hardship (Eldridge, at para. 87). The size of a service
provider’s enterprise and the economic conditions confronting it are relevant (Chambly,
at p. 546). Substantial interference with a service provider’s business
enterprise may constitute undue hardship, but some interference is an
acceptable price to be paid for the realization of human rights (Central
Okanagan School District No. 23, at p. 984). A service provider’s capacity
to shift and recover costs throughout its operation will lessen the likelihood
that undue hardship will be established: Howard v. University of British
Columbia (1993), 18 C.H.R.R. D/353 (B.C.C.H.R.).
132
Other relevant factors include the impact and availability of external
funding, including tax deductions (Brock v. Tarrant Film Factory Ltd. (2000),
37 C.H.R.R. D/305 (Ont. Bd. Inq.)); the likelihood that bearing the net cost would
threaten the survival of the enterprise or alter its essential character (Quesnel
v. London Educational Health Centre (1995), 28 C.H.R.R. D/474 (Ont. Bd.
Inq.)); and whether new barriers were erected when affordable,
accessibility-enhancing alternatives were available (Maine Human Rights
Commission v. City of South Portland, 508 A.2d 948 (Me. 1986), at pp.
956-57).
133
It bears repeating that “[i]t is important to remember that the duty to
accommodate is limited by the words ‘reasonable’ and ‘short of undue
hardship’. Those words do not constitute independent criteria. Rather, they
are alternate methods of expressing the same concept”: Chambly, at p.
546, citing Central Okanagan School District No. 23, at p. 984. The
factors set out in s. 5 of the Canada Transportation Act flow out of the
very balancing inherent in a “reasonable accommodation” analysis. Reconciling
accessibility for persons with disabilities with cost, economic viability,
safety, and the quality of service to all passengers (some of the factors set
out in s. 5 of the Act) reflects the reality that the balancing is taking place
in a transportation context which, it need hardly be said, is unique.
134
Setting out the factors is Parliament’s way of acknowledging that the
considerations for weighing the reasonableness of a proposed accommodation vary
with the context. It is an endorsement of, not a rebuke to the primacy of
human rights principles, principles which anticipate, as this Court said in Chambly
and Meiorin, that flexibility and common sense will not be disregarded.
135
Each of the factors delineated in s. 5 of the Act is compatible with
those that apply under human rights principles. Any proposed accommodation
that would unreasonably interfere with the realization of Parliament’s
objectives as declared in s. 5 of the Act may constitute undue hardship.
136
Section 5 of the Canada Transportation Act , together with s.
172(1) , constitute a legislative direction to the Agency to determine if there
is an “undue obstacle” to the mobility of persons with disabilities. Section
5(g)(ii) of the Act states that it is essential that “each carrier or
mode of transportation, as far as is practicable, carries traffic to or
from any point in Canada under fares, rates and conditions that do not
constitute . . . an undue obstacle to the mobility of persons, including
persons with disabilities”. The Agency’s authority to identify and remedy
“undue obstacles” to the mobility of persons with disabilities requires that it
implement the principle that persons with disabilities are entitled to the
elimination of “undue” or “unreasonable” barriers, namely those barriers that
cannot be justified under human rights principles.
137
The qualifier, “as far as is practicable”, is the statutory
acknowledgment of the “undue hardship” standard in the transportation context.
The fact that the language is different does not make it a higher or lower
threshold than what was stipulated in Meiorin: Quebec (Commission des
droits de la personne et des droits de la jeunesse) v. Montréal (City),
[2000] 1 S.C.R. 665, 2000 SCC 27, at para. 46. The same evaluative balancing
is required in assessing how the duty to accommodate will be implemented.
138
That is precisely why Parliament charged the Agency with the public
responsibility for assessing barriers, not the Canadian Human Rights
Commission. The Agency uniquely has the specialized expertise to balance the
requirements of those with disabilities with the practical realities —
financial, structural and logistic — of a federal transportation system.
139
What is “practicable” within the meaning of s. 5 (g)(ii) of the Canada
Transportation Act is based on the evidence as to whether the accommodation
of the disability results in an unreasonable burden on the party responsible
for the barrier. That is the same analysis required to assess whether there is
undue hardship under the Canadian Human Rights Act or whether, under the
Canada Transportation Act , it would be unreasonable (or undue) to
require that an obstacle be removed or rectified. No difference in approach is
justified by the different context, particularly since Parliament directed the
Agency in s. 171 to foster complementary policies and practices with those of
the Canadian Human Rights Commission. The “reasonable accommodation” analysis
in the transportation context is unique only insofar as the policy objectives
articulated in s. 5 of the Canada Transportation Act are factors which
inform a determination of the possible grounds on which undue hardship may be
established. These factors inform, not dilute, the duty to accommodate to the
point of undue hardship.
140
The Federal Court of Appeal’s articulation of the Agency’s mandate in VIA
Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25, at
paras. 34-37, is consistent with this approach. While no specific definition
of “undue obstacle” was promulgated, an analytical approach to identifying an
“undue obstacle” under the Canada Transportation Act was proposed with
reference to the judicial interpretation of the term “undue” in other
legislative contexts, including human rights enactments. The court determined
that “undueness” was a relative concept, and, relying on Supreme Court
jurisprudence, recognized that “undue” generally means disproportionate,
improper, inordinate, excessive or oppressive, and expresses a notion of
seriousness or significance.
141
The court in VIA Rail Canada Inc. v. National Transportation Agency explicitly
adverted to established authority on “undue hardship” in the human rights
context in discussing the need to balance the interests of various parties in
an “undue obstacle analysis”. Citing Central Alberta Dairy Pool, at p.
521, Sexton J.A. (Linden and Evans JJ.A. concurring) said: “The Supreme Court
has also recognized that the term [undue] implies a requirement to balance the
interests of the various parties” (para. 37). The court later determined that
“the Agency was required to undertake a balancing of interests such that the
satisfaction of one interest does not create disproportionate hardship
affecting the other interest” (para. 39 (emphasis added)).
142
In the present case, the onus was on VIA to establish that the obstacles
to the mobility of persons with disabilities created by its purchase of the
Renaissance cars were not “undue” by persuading the Agency that it could not
accommodate persons with disabilities without experiencing undue hardship. The
Agency’s decision makes clear that this onus was not met.
143
In finding the Agency’s decision unreasonable, Sexton J.A. noted that
“the system cannot afford to have every rail car equipped with every type of
mechanism to be able to address every type of disability” (para. 55). That,
however, is not what the Agency decided. Rather, the Agency’s decision would
make one coach car in each day trip accessible to persons using personal
wheelchairs through the modification of 13 economy coach cars, and one sleeper
unit in each overnight trip personal wheelchair accessible through the
modification of 17 service cars.
144
I see nothing unreasonable in the Agency’s analysis or decision in this
case. In particular, I see nothing inappropriate about the factors it did —
and did not — rely on, such as the Rail Code, the use of personal wheelchairs,
the network, and cost, either in determining whether the obstacles were undue,
or in determining what corrective measures were appropriate. Each factor will
be examined in turn.
(a) The Rail Code
145
The Agency accepted the 1998 Rail Code as a factor to consider. VIA
challenged this reliance since the Rail Code was based on voluntary compliance.
146
The Rail Code, as previously stated, was in fact the result of a “voluntary,
consensus-building process involving extensive consultation with the
transportation industry, the community of persons with disabilities and other
government bodies such as the Canadian Human Rights Commission . . . and the
Department of Transport” (Preliminary Decision, at p. 29). Developed in
consultation with an expert human rights agency, the Rail Code’s standards
represent objectives that rail carriers, including VIA, publicly accepted. Its
purpose was to function as self-imposed regulation, establishing minimum
standards all rail carriers agreed to meet.
147
It was, accordingly, a proper factor in the Agency’s analysis,
especially since the anticipation of compliance is reflected in the language of
the Rail Code itself, which provides, in s. 1.1.1: “It is expected that this
[passenger rail car accessibility] Part of the Code of Practice will be
followed by VIA Rail Canada Inc.” The fact that the Rail Code was voluntarily
agreed to and not government-imposed reinforces, rather than detracts from its
relevance as a factor for assessing VIA’s “undue hardship” arguments. VIA knew
it had agreed to, and was expected to comply with, the Rail Code.
148
The Rail Code provides that until every grouping of passenger rail cars
connected together to form a train (a “train consist”) has at least one
independently accessible seating/sleeping and washroom facility, any newly
manufactured car, or car undergoing a major refurbishment, should provide for
such accommodation. Because existing equipment can be more difficult and
expensive to retrofit, the Rail Code permits some flexibility with respect to
the time period during which rail carriers are expected to achieve
accessibility.
149
The Agency concluded that the Renaissance cars were not existing equipment
for purposes of the Rail Code, but fell instead in the category of newly
manufactured cars or cars undergoing a major refurbishment within the meaning
of s. 1.1.1 of the Rail Code. Seventy-five of the 139 Renaissance cars arrived
in Canada as unused parts, or as partially assembled cars. VIA intended to
assemble them as the next generation of rail cars for 20 to 25 years’ use. It
was spending at least $100 million on structural and other changes to the
Renaissance cars, which had themselves cost only $29.8 million.
150
VIA’s argument that the provisions of the Rail Code now represent
economically and structurally unfeasible standards is an ex post facto
argument the Agency was entitled to reject, based on the paucity of supporting
evidence and cooperation it got from VIA. In the context of VIA’s decision to
purchase new rail cars, the Agency concluded, properly in my view, that the
Rail Code put “VIA on notice of the kinds of obstacles that it should
reasonably have been expected to remove when it considered purchasing new
rolling stock” (Preliminary Decision, at p. 22).
(b) The Use of Personal Wheelchairs
151
Based on the Canadian Standards Association (CSA), CAN/CSA-B651-95, Barrier‑Free
Design Standard, which sets out minimum standards for making buildings and
other facilities accessible to persons with disabilities, many of which are
incorporated into the Rail Code, the accessibility paradigm is access by
personal wheelchair. This standard was adopted in the Rail Code, which provides
that “any newly manufactured coach car or sleeping car specified by these
sections to be wheelchair‑accessible should be designed to be accessible
to a person in a personal wheelchair” (s. 1.1.1). Transport Canada too has
incorporated the CSA Barrier-Free Design Standard definition of a
personal wheelchair into its Passenger Car Safety Rules, which prescribe
mandatory safety standards.
152
As purchased, none of the Renaissance cars, unlike the retrofitted VIA 1
cars in the existing fleet, satisfied these standards.
153
The Agency highlighted independent access as a critical component of the
concept of rail car accessibility. Personal wheelchair users are physically
and psychologically more independent when they are able to remain in personal
wheelchairs designed to meet their specific physical needs. In view of the
importance of independent access, the Agency concluded that accommodation by supplying
a narrow wheelchair on the train (on-board wheelchair), which requires that
passengers be assisted into it, is not an acceptable substitute for a person’s
own wheelchair.
154
The Agency noted that the use of personal wheelchairs minimizes the
effects of disabilities in ways that “on-board” wheelchairs cannot, and
eliminates both the physical risks and the humiliation that can accompany
transfers from a personal wheelchair into alternative seating accommodations or
the receipt of assistance in washroom use. In its words, being forced to rely
on others for assistance gives rise to “human error, inconvenience, delays,
affronts to human dignity and pride, cost, uncertainty, and no sense of
confidence or security in one’s ability to move through the network”
(Preliminary Decision, at p. 19).
155
In the Agency’s view, “on-board” wheelchair use was particularly
inadequate in those parts of the train VIA had specifically intended to meet
the needs of persons with disabilities, like the “accessible suite” in the
service cars. Based on promoting the principle of independence, the Agency
concluded that “where there are features and amenities specifically designed to
meet the needs of persons with disabilities who wish to remain in their own
wheelchairs, it is essential that they provide adequate dimensions and
appropriate designs so as to not lessen the level of independence” (Preliminary
Decision, at p. 20). According to the Rail Code, a personal wheelchair means a
passenger‑owned wheelchair that requires a minimum clear floor area of
750 mm by 1200 mm to accommodate the wheelchair and its occupant and a minimum
clear turning space of 1500 mm in diameter (s. 1.1.1).
156
CCD had invited the Agency to adopt a different standard that better
reflects the larger size of modern wheelchairs. The Agency declined to do so.
While acknowledging that the CSA definition of a personal wheelchair was based
on data from the 1970s when wheelchairs were smaller than those in use today,
the Agency chose instead to accept the well-established CSA personal wheelchair
standard.
157
The standard of personal wheelchair use is not unique to Canada. Like
the Rail Code, American, British and Australian standards emphasize the
importance of ensuring that persons with disabilities can access rail
facilities and services in their personal wheelchairs. Legislation in each
country requires that at least one car in every passenger train be personal
wheelchair accessible.
158
British standards direct rail service providers to provide one personal
wheelchair-sized space in each class of passenger accommodation. In Part V of
the Disability Discrimination Act 1995 (U.K.), 1995, c. 50, s. 46
authorizes the Secretary of State to enact rail vehicle accessibility
regulations ensuring accessibility for persons who must remain in their
wheelchairs. These mandatory British standards under the Rail Vehicle
Accessibility Regulations 1998, S.I. 1998/2456, are based on a reference
wheelchair only slightly smaller than the “personal wheelchair” standard under
the CSA Barrier-Free Design Standard.
159
In the United States, the Americans with Disabilities Act, 42
U.S.C. § 12162 (2000), provides that “it shall be considered discrimination . .
. for a person to purchase or lease any new rail passenger cars for use in
intercity rail transportation . . . unless all such rail cars are readily
accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs, as prescribed . . . in regulations”. For
American rail cars, accessibility is defined by technical standards provided in
the Americans with Disabilities Act (ADA) Accessibility Guidelines for
Transportation Vehicles, 36 CFR Part 1192 (1999), adopted by the Department
of Transportation, many of which are substantially the same as the CSA Barrier-Free
Design Standard for personal wheelchairs.
160
In Australia, the Disability Standards for Accessible Public
Transport 2002 (“Disability Standards”) seek to remove
discrimination on the basis of disability from public transport services over a
30-year period. To this end, the Disability Standards impose national
requirements and mandatory performance outcomes governing such matters as the
replacement or upgrading of infrastructure and capital investments. Consistent
with the goal of ensuring that passengers using mobility aids can gain
independent access to transportation equipment, the minimum allocated space for
a single wheelchair is in accordance with what is required to accommodate a
personal wheelchair as defined by Canadian standards. However, the Disability
Standards note that the source data for this minimum standard may be dated,
and warn service providers to be prepared for a future revision of these
standards which would increase the dimensions to accommodate larger
wheelchairs.
161
Personal wheelchair-based access as the appropriate accessibility
paradigm is also consistent with this Court’s human rights jurisprudence. In Grismer,
this Court held at para. 19, that “[e]mployers and others governed by human
rights legislation are now required in all cases to accommodate the
characteristics of affected groups within their standards, rather than
maintaining discriminatory standards supplemented by accommodation for those
who cannot meet them” (emphasis in original). Standards, in other words, must
be as inclusive as possible: Grismer, at para. 22.
162
The accommodation of personal wheelchairs enables persons with
disabilities to access public services and facilities as independently and
seamlessly as possible. Independent access to the same comfort, dignity,
safety and security as those without physical limitations, is a fundamental
human right for persons who use wheelchairs. This is the goal of the duty to
accommodate: to render those services and facilities to which the public has
access equally accessible to people with and without physical limitations.
163
VIA is required to accommodate this right as far as is practicable not
only because Canadian law requires it to do so, but because it itself has committed
publicly to doing so by agreeing to the Rail Code, a set of standards devised
by it and the Agency in consultation with the Canadian Human Rights
Commission. And the way VIA had agreed to do so was through access based on
personal wheelchair use when it purchased new cars or undertook a major
refurbishment of existing cars. The operating paradigm it accepted is the
Canadian and internationally accepted norm, not the exception.
164
VIA cannot now argue that it was entitled to resile from these norms
because it found a better bargain for its able-bodied customers. Neither the
Rail Code, the Canada Transportation Act , nor any human rights principle
recognizes that a unique opportunity to acquire inaccessible cars at a
comparatively low purchase price may be a legitimate justification for
sustained inaccessibility. In the expansion and upgrading of its fleet, VIA
was not entitled to ignore its legal obligations and public commitments. The
situation it now finds itself in was preventable in a myriad of ways.
165
In view of the widespread domestic and international acceptance of
personal wheelchair‑based accessibility standards and, in particular,
VIA’s own Rail Code commitments, it was not unreasonable for the Agency to rely
on the personal wheelchair as a guiding accessibility paradigm.
(c) The Network Defence
166
VIA’s “network defence” can be broken down into two elements. First,
VIA submitted that special, as-needed accommodations, such as individual meal
delivery to the service cars, assistance from trained staff with transfers into
on-board wheelchairs, and staff assistance for using the washroom facilities,
were adequate alternatives to requiring retrofitting that would permit
passengers using personal wheelchairs to access and perform these services
themselves. Second, VIA was of the view that the “greater flexibility” in
travel options the Renaissance cars provided, in addition to the continuing
option for the time-being of using VIA’s pre-Renaissance fleet, was a complete
answer to CCD’s concerns.
167
Although VIA made clear that its existing and more accessible fleet
would be phased out and replaced with Renaissance cars on key routes between
Montreal and Halifax and Montreal and Gaspé, VIA was of the view that any
obstacles in the Renaissance fleet could be diminished if persons with
disabilities used its older but more accessible fleet. The Agency interpreted
VIA’s argument to be that, unlike persons without disabilities, those with
disabilities “cannot expect to go on every train, at every time in every way”
(Preliminary Decision, at pp. 36-37).
168
Sexton J.A. found that the Agency’s failure to properly consider VIA’s
network as a whole was patently unreasonable. In his view, the Agency erred by
not considering the alternative actions VIA could take to ameliorate the
obstacles in the Renaissance cars, like providing alternative transportation or
different trains at different times.
169
The record, however, reveals that the Agency did in fact consider VIA’s
network to the extent that VIA was willing to provide any information about it,
but rejected it, finding that “there is no evidence on the record that supports
VIA’s [position] that its existing fleet or its network, generally, will
address obstacles that may be found to exist in the Renaissance Cars”
(Preliminary Decision, at p. 38). For example, the Agency was alive to the
possibility of remedying obstacles through network-based accommodations that
would not involve physical changes to the Renaissance cars. Early in the
proceedings, on March 29, 2001, the Agency asked VIA “whether it will be
possible for the Nightstock [Renaissance] cars to be coupled with its existing
fleet” (CTA Decision No. LET-AT-R-166-2001). VIA replied on April 2, 2001,
stating: “the Nightstock cars will not be coupled with the existing fleet,
save locomotives”. The Agency also had information about VIA’s reservation
policy, its finalized fleet deployment plans, and its service standards.
170
But when it ordered VIA to provide a list of the network services it
proposed would alleviate any obstacles on the Renaissance trains, VIA replied:
“This case is a review of the physical dimensions of the Renaissance cars
and whether they represent an undue obstacle to the transportation of persons
with disabilities” (emphasis added).
171
VIA added the following clarification: “There is no change in the
services which VIA Rail has committed to provide persons with disabilities.”
VIA’s network defence was that it would provide the same services — no less and
no more — that it already provided to passengers with disabilities. If persons
with disabilities did not like the differently accessible features of the
Renaissance fleet, they could continue to ride the pre-Renaissance fleet.
172
VIA described its network as including “the reservation system, the
alternative transportation policy, ground services, special handling services,
train accommodation, employee training and special service requests”.
173
There is very little evidence in the record about the content of these
network features and how they actually accommodate passengers with
disabilities. What is clear, however, is that persons in a wheelchair who wish
to purchase a ticket on a VIA train cannot be assured that the train they want
to take will be able to accommodate them.
174
VIA asserted before the Agency that it “has a policy for alternative
transportation that is sensitive to passengers with disabilities and a history
of satisfying those needs”, but provided no evidence in support of this
assertion. In oral argument before this Court, VIA explained that in the past
it has sent passengers to their destinations by taxi when they could not be
accommodated on its trains, and that passengers who call in advance may be
offered assistance.
175
This ad hoc provision of taxis or a network of rail services with
only some accessible routes is not, it seems to me, adequately responsive to
the goals of s. 5 of the Canada Transportation Act . Section 5 provides
that the transportation services under federal legislative authority are,
themselves, to be accessible. It is the rail service itself that is to be
accessible, not alternative transportation services such as taxis. Persons
with disabilities are entitled to ride with other passengers, not consigned to
separate facilities.
176
Likewise, the fact that there are accessible trains travelling along
some routes does not justify inaccessible trains on others. It is the global
network of rail services that should be accessible. The fact that accessibility
is limited to isolated aspects of the global network — like VIA's alternative
transportation policy or the suggestion that persons with disabilities can
continue to ride the existing fleet for the time-being — does not satisfy
Parliament’s continuing goal of ensuring accessible transportation services.
177
Any ambiguity as to whether “accessible” in the English version of s. 5
of the Canada Transportation Act modifies the specific and plural
“services” offered or the single global “network” of services provided is
resolved by the use of the plural “accessibles” in the French version.
The French text states:
. . . la mise en place d’un réseau sûr, rentable et bien adapté de
services de transport viables et efficaces, accessibles aux personnes ayant une
déficience . . .
178
This confirms the common sense interpretation: namely that Parliament
intended that all transportation services offered to the public be accessible,
and not merely pieces of the network. As David Lepofsky notes, “[a] passenger
who buys a ticket to take a VIA train does not ride the entire VIA network of
all trains on all routes. He or she takes a specific train on a specific route
at a specific time. To a passenger with a disability who needs to travel from
Montreal to Toronto, it is immaterial whether VIA runs a fully accessible train
from Calgary to Vancouver”: “Federal Court of Appeal De-Rails Equality Rights
for Persons With Disabilities — Via Rail v. Canadian Transportation Agency
and the Important Duty Not to Create New Barriers to Accessibility”
(2005-2006), 18 N.J.C.L. 169, at p. 188.
179
The Agency found that VIA’s network defence, based on what was available
on its existing fleet, ran counter to the future-centred provisions of the Rail
Code, which were oriented toward the incremental accommodation of personal
wheelchairs in the federal rail network. In a 1998 case based on an Application
by Yvonne Gaudet, on behalf of Marcella Arsenault (CTA Decision No.
641-AT-R-1998), it had found that the lack of personal wheelchair accessible
sleeper units in VIA’s existing fleet did not constitute an undue obstacle
because of the financial and other implications of making the structural
changes required. This acknowledgment of the cost and difficulties involved in
structural changes to the existing fleet was based, in part, on an
understanding that VIA had, through the Rail Code, among other methods,
publicly committed itself to improving the accessibility of its future
fleet of passenger rail cars.
180
But, the Agency concluded, rather than increasingly accommodating this
goal in purchasing the Renaissance cars, VIA knowingly perpetuated the very
inaccessibility problems that encumbered its existing fleet. The Agency
therefore concluded that VIA could not rely on its existing equipment as an
alternative accommodation.
181
VIA’s proposed defence is also inconsistent with this Court’s human
rights jurisprudence. It ignores the fact that a significant cause of handicap
is the nature of the environment in which a person with disabilities is
required to function. Lepofsky has noted that “[o]ne of the greatest obstacles
confronting disabled Canadians is the fact that virtually all major public and
private institutions in Canadian society were originally designed on the
implicit premise that they are intended to serve able-bodied persons, not the
10 to 15% of the public who have disabilities”: “The Duty to Accommodate: A
Purposive Approach” (1993), 1 Can. Lab. L.J. 1, at p. 6. It is, after
all, the “combined effect of an individual’s impairment or disability and the
environment constructed by society that determines whether such an individual
experiences a handicap”: I. B. McKenna, “Legal Rights for Persons with
Disabilities in Canada: Can the Impasse Be Resolved?” (1997-98), 29 Ottawa
L. Rev. 153, at p. 164.
182
The network approach preserves the paramountcy of this paradigm,
contrary to this Court’s direction that standards be as inclusive as possible:
Grismer, at para. 22.
183
Under the Canadian Human Rights Act , VIA is required to take
positive steps to implement inclusive standards and accommodate passengers with
disabilities to the point of undue hardship. VIA’s network defence would have
it take no further steps to accommodate passengers with disabilities beyond its
existing fleet. But because the Renaissance cars would “be the only cars in
operation on some of VIA’s routes in the very near future and they will be a
significant part of VIA’s network for a considerable period of time”
(Preliminary Decision, at p. 39), passengers with disabilities would have to
choose between not travelling by train at all or selecting from two generations
of differently inaccessible rail cars with VIA staff assisting them.
184
The American equivalent of the Agency, the Architectural and
Transportation Barriers Compliance Board has explicitly rejected the relevance
of a service-based “network defence” where barriers to accessible
transportation exist. In developing its regulatory guidelines, the Board was
asked to “permit operational procedures to substitute for compliance with the
technical provisions” of the Americans With Disabilities Act (ADA)
Accessibility Guidelines for Transportation Vehicles: Final Guidelines, 56
Fed. Reg. 45530 (September 6, 1991), at p. 45532. The Board rejected this
approach, stating:
. . . the Board’s statutory mandate is to ensure accessibility of the
built environment, including instances in which operational procedures might
fail. Thus, for example, the Board cannot assume that the strength, agility
and attention of a driver will be sufficient to prevent a heavy wheelchair from
rolling off a lift. Neither is it appropriate, as one transit operator
suggested, to assume that fellow passengers will have the strength or skill to
assist persons with disabilities to board vehicles. It is just as
inappropriate to expect other passengers to lift a wheelchair user into a
vehicle as it is to assume others should lift a wheelchair over a curb or carry
someone up a flight of stairs to enter a building.
(Fed. Reg., at p. 45532)
185
Moreover, as previously noted, in the United States, Britain and
Australia, legislative instruments require, as does the Rail Code, that at
least one car in every train that leaves a railway station must be accessible
to persons using personal wheelchairs. Each of these jurisdictions also
requires that all new rail equipment satisfy minimum standards designed
to accommodate personal wheelchairs. VIA’s network defence is conceptually
antithetical to these minimum standards of accommodation.
186
The twin goals of preventing and remedying discrimination recognized in Canadian
National Railway Co. v. Canada (Canadian Human Rights Commission) cannot be
accomplished if the creation of new, exclusionary barriers can be defended on
the basis that they are no more discriminatory than what they are replacing.
This is an approach that serves to perpetuate and exacerbate the historic
disadvantage endured by persons with disabilities. Permitting VIA to point to
its existing cars and special service-based accommodations as a defence
overlooks the fact that, while human rights principles include an
acknowledgment that not every barrier can be eliminated, they also include a
duty to prevent new ones, or at least, not knowingly to perpetuate old ones
where preventable.
187
Meiorin counsels tribunals to consider a respondent’s efforts to
investigate alternative, less discriminatory approaches demonstrating that no
other reasonable or practical means of avoiding negative impacts on a claimant
was possible in the circumstances. VIA did not appear, from the evidence, to
have seriously investigated the possibility of reasonably accommodating the use
of personal wheelchairs or, for that matter, any other issue related to
providing access for persons with disabilities.
188
When it purchased the Renaissance cars, no “plan document” or cost
estimates associated with improving the accessibility of the Renaissance cars
existed, undermining VIA’s submission that it discharged its obligations to
investigate and consider alternative means of accommodating persons with
disabilities when it decided to purchase the Renaissance cars. Though VIA
initially expected “commissioning” costs associated with the assembly and
renovation of the cars in the neighbourhood of $100 million, no portion of this
amount appears to have been dedicated to accessibility enhancements, since it
was VIA’s position that the Renaissance cars were already accessible.
189
VIA did not satisfy the Agency that the barriers in question could not
reasonably be remedied. The form of accommodation it proposed, instead, was
leaving a person with disabilities entirely dependent on others. By endorsing
network accommodation on the basis of VIA’s existing fleet and service
standards, the majority in the Federal Court of Appeal was, with respect,
insufficiently attentive to the Meiorin principles.
(d) Cost
190
The Agency, in my view, appropriately considered the cost of remedying
an obstacle when determining whether it was “undue”, contrary to the majority’s
assessment of the evidence. Sexton J.A., for the majority, concluded that the
Agency could not have properly determined which obstacles in the Renaissance
cars were undue without knowing how much it would cost to fix them. Moreover,
it was patently unreasonable, the court unanimously found, for the Agency to
conclude that there was no compelling evidence of economic impediments to
remedying the obstacles in the Renaissance cars before receiving the cost
estimates it had asked VIA to submit.
191
These conclusions are, with respect, problematic. The record reveals
that the Agency did not identify any obstacles as “undue” or order corrective
action to be taken without considering the cost of remedial measures and
actively attempting to secure VIA’s participation in pinpointing those
measures.
192
It is useful to set out the specific remedial steps the Agency ordered
VIA to take in its final decision dated October 29, 2003; how the Agency had
put VIA on notice that it was considering these remedial measures; and what
cost-related information it sought and received from VIA before ordering them.
The Agency’s final decision states:
. . . the Agency hereby directs VIA to make the necessary modifications
to the Renaissance passenger rail cars:
1. In the “accessible suite”, to ensure that:
(a) the door from the vestibule in the
service car into the sleeper unit in the “accessible suite” is widened to at
least 81 cm [31.89"]; and,
(b) there is a wheelchair tie-down in the
sleeper unit to allow a person with a disability to retain a Personal
Wheelchair.
2. In the economy coach cars, through the
implementation of Option 3, with the appropriate modifications, to ensure that:
(a) there is a washroom that can accommodate
persons using Personal Wheelchairs proximate to the wheelchair tie-down;
(b) there is sufficient clear floor space in
the wheelchair tie-down area to accommodate a person in a Personal Wheelchair
and a service animal; and the tie-down area, in conjunction with the area that
is adjacent to it, provides adequate manoeuvring and turning space to allow a
person using a Personal Wheelchair to manoeuver into and out of the tie-down
area;
(c) there is a seat for an attendant, which
faces the wheelchair tie-down; and,
(d) the width of the bulkhead door opening
located behind the wheelchair tie-down and the width of the aisle between the
“future valet/storage” are at least 81 cm [31.89"].
3. In every economy coach car, to ensure that
there is one row of double seats that is lowered to floor level and that
provides sufficient space for persons who travel with service animals;
4. In every coach car, to ensure that, in
addition to the four moveable aisle armrests that are presently in the cars,
there are at least two additional movable aisle armrests on the double-seat
side;
5. With respect to the exterior stairs to the
cars, to ensure that the stair risers on the Phase 1 Renaissance Cars are
closed; and,
6. With respect to overnight train consists
where a sleeper car service is offered, to ensure that a service car is
marshalled in such a way that the “accessible suite” is adjacent to the
wheelchair tie-down end of the economy coach car that contains the wheelchair-accessible
washroom, and this suite is offered as a sleeping accommodation. [pp. 70-71]
(i) Corrective Measure 1(a): Widening Doors
to Sleeper Unit
193
On January 8, 2002, the Agency asked VIA to provide an estimate of the
cost of widening the doors of the accessible suite to 81 cm (31.89 inches)
after VIA failed to provide this information in response to a request dated
November 15, 2001 from the CCD.
194
On January 14, 2002, VIA replied with a letter of the same date from
Bombardier Inc. indicating that the preparation of an estimate would take 45
days and cost at least $100,000. VIA’s covering letter shows it believed that
the Agency was considering having both the interior doors into the “accessible
suite” and the exterior doors into the service cars widened when it had this
estimate of an estimate prepared. The Agency’s final decision, and corrective
measure 1(a), concerned only the interior door into the sleeper unit from the
entry vestibule. In its correspondence with the Agency, VIA said that “[i]f
VIA Rail is required to prepare such an estimate, the Agency should direct that
that be done”. Again on March 1, 2002, the Agency asked VIA for the estimated
cost of widening the doors in the “accessible suite”.
195
Eventually, in its Preliminary Decision of March 27, 2003, the Agency
formally ordered VIA to provide this estimate. A 60-day deadline for an
estimate of the cost of widening the interior doors was set by the Agency in
its Preliminary Decision. VIA was given a further 60 days after the Agency
reissued its Preliminary Decision on June 9, 2003.
196
VIA failed to comply with either deadline notwithstanding that it had
previously indicated in its January 14, 2002 letter to the Agency that it could
provide an estimate addressing even the more complicated question of exterior
doors within 45 days. Eventually, the Agency found “that no compelling evidence
was presented by VIA indicating that, from a structural or economic
perspective, the doors to the sleeper unit and the washroom in the ‘accessible
suite’ cannot be widened to at least 81 cm (31.89”)” (Preliminary Decision, at
p. 108).
197
VIA had, in any event, already unilaterally increased the width from 72
and 73 cm respectively to 75 cm without the Agency’s knowledge. This was 6 cm
shorter than the Rail Code requirement of 81cm. If VIA had structural and
economic information to justify this deviation from the Rail Code, none was
provided to the Agency. With VIA’s own acknowledgment that a more complicated
estimate would take 45 days to prepare in mind and, given the cost knowledge it
would have had from widening the doors already, there was no basis for VIA
failing to provide the cost-related evidence to the Agency within any of the
deadlines imposed.
(ii) Corrective Measure 1(b): Installing a
Tie-Down in Sleeper Unit
198
The Agency’s final decision required VIA to install a wheelchair
tie-down in the “accessible suite”. This is consistent with what VIA had
originally said it intended to do when, early in the proceedings, it advised
the Agency that the sleeper units in the service cars would have a wheelchair
tie-down installed. Correspondence dated January 3, 2001 from VIA’s
general counsel states that “[t]he service car has special facilities,
including sleeping accommodation for two, an accessible washroom, wide door
access and will have a wheelchair tie-down” (emphasis added).
199
The Agency’s Preliminary Decision in March 2003 stated: “the Agency is
of the opinion that it appears that there is no structural impediment to
installing a wheelchair tie-down in the ‘accessible suite’ and that the
relative cost to install one is likely minimal” (p. 110). Clearly, VIA had
received adequate notice of the specific remedial measure the Agency was
considering to prepare a cost estimate that would rebut the Agency’s
preliminary conclusion that the cost was likely to be “minimal”.
200
In its final decision, the Agency noted that “VIA, by its own
submission, indicated that it is feasible to install a tie-down in the
‘accessible suite’ but decided not to do so in order to avoid any isolation of
persons with disabilities” (p. 30). The Agency went on to note that despite
being specifically asked to provide feasibility and economic information about
the installation of a wheelchair tie-down in the “accessible suite”, VIA failed
to provide any. VIA had already unilaterally added a tie-down to economy coach
cars by this stage in the proceedings, so it would have had some information
about their cost. Moreover, VIA had originally planned to add a tie-down to
the “accessible suite”. It could, accordingly, have provided any cost estimates
it had previously prepared in support of these plans, if they existed. VIA
failed to provide any of the cost information it had in its possession based on
work it had actually completed or originally planned.
(iii) Corrective Measure 2: Implementing
Option 3
201
The changes to the economy coach cars were the most significant ones VIA
was ordered to make. In the Agency’s decisions of June 9 and July 9, 2003, VIA
had been put on notice that the Agency was considering ordering the
implementation of Option 3, one of the redesign options VIA created to respond
to Transport Canada’s concern that the coach car washrooms were located in the
unsafe “crumple zone” of the cars. It was given several opportunities to “show
cause” why this option could not be implemented. VIA ultimately submitted one
paragraph of text with vague cost-related assertions.
202
Option 3, as proposed by VIA to Transport Canada, would alter the two
washrooms located at the wheelchair tie-down end of the economy coach cars.
Space from the washroom on the single-seat side of the cars would be used for
an expanded wheelchair tie-down space, relocated from the double-seat side of
the cars to the single-seat side. On the double-seat side, the space occupied
by the inaccessible wheelchair tie-down would be used to enlarge and
reconfigure the existing washroom located directly behind. While Transport
Canada’s concerns were unrelated to the cars’ accessibility, the Agency was of
the view that Option 3 could be implemented in 13 of the 33 economy coach cars
in a way that would satisfy key Rail Code accessibility standards. It was the
Agency’s view that these changes, which it noted VIA had indicated to Transport
Canada and to the Agency were structurally feasible, could concurrently address
Transport Canada’s safety concerns, the inaccessibility of the current
wheelchair tie-down, and the absence of a wheelchair accessible washroom in
close proximity to the tie-down space.
203
While VIA had not provided the dimensions associated with the tie-down
space contemplated in Option 3, the Agency found that it had sufficient
evidence to determine that it would, or could, readily be made personal
wheelchair accessible. In the Agency’s view, Option 3 would have to be
modified to ensure that there was sufficient space for passengers using
wheelchairs to easily manoeuver into and out of the tie-down area, which could
be achieved by removing either or both of the existing bulkhead wall and the
storage area VIA planned to create. The Agency was also of the opinion that
because a removable seat had been installed in the tie-down mechanisms located
in the VIA 1 Renaissance cars, it was equally feasible to install a removable
seat in front of the Option 3 tie-down area to accommodate an attendant. The
Agency planned to work with VIA to adjust Option 3 accordingly, noting that it
would conduct an “examination of the general arrangement on how VIA intends to
implement the corrective measures required by this Decision, which VIA is
required to file with the Agency for its review and approval” (Final Decision,
at p. 37).
204
Because it was less expensive, VIA preferred Option 1, under which VIA
would decommission the two washrooms near the wheelchair tie-down space and
replace them with storage space. The washroom at the other end of the car
would be put into service, leaving no washroom at the end of the car where the
wheelchair tie-down was located.
205
The Agency had made clear in its Preliminary Decision that it was only
necessary to make 13 economy coach cars personal wheelchair accessible to
satisfy the Rail Code (i.e. one accessible economy coach car per daytime
train). Nonetheless, VIA gave the Agency cost estimates based on implementing
Option 3 in all of the 47 coach cars, estimating $100,800 per car, for a total
of $4.8 million. It also estimated it would lose $24.2 million in foregone
passenger seat revenue over the life of the affected cars.
206
Nor did VIA subtract the costs of Option 1 from its estimate of the
costs of Option 3. Because VIA would be required, in any event, to implement
one of the redesign options it had prepared to address Transport Canada’s
safety concerns, the Agency determined that only the additional costs which VIA
would bear by being required to address safety issues in a way that improved
the accessibility of the Renaissance fleet were relevant. Since Option 1 would
cost “at least $2.3 million” (Final Decision, at p. 39), VIA should have
subtracted this amount from its estimate of the costs of implementing Option 3.
207
The Rail Code standard of one accessible car per train could be achieved
by implementing Option 3 in only 13 of VIA’s 33 economy coach cars at a total
direct cost of $673,400. The Agency noted that these more accurate cost
estimates did not reflect the various stages of completion of the coach cars
and so were themselves “necessarily overstated” (Final Decision, at p. 39).
The Agency made a finding of fact that “the passenger seat revenue that would
be foregone as a result of implementing Option 3 would be relatively
insignificant” (Final Decision, at p. 52); and its estimation of the “worst
case scenario” for VIA regarding the total cost of implementing Option 3 in all
33 economy coach cars (if VIA chose to implement Option 3 exclusively) was
approximately $1.7 million (Final Decision, at p. 39).
208
The Agency was also of the view that VIA’s assertion that it would lose
$24.2 million in passenger revenue over the 20-year life of the Renaissance
cars through the implementation of Option 3 was extremely high. The Agency
noted that if VIA planned “to remove up to 47 seats to accommodate passengers’
coats and forego the revenues associated with this, it must be prepared to
forego the revenues associated with removing up to 33 seats (or 13 seats in the
‘best case scenario’ . . .) in order to implement Option 3” (Final Decision, at
p. 53). Based on VIA’s own statistics about the very small numbers of
passengers who use wheelchairs on its trains, the tie-down space would be
occupied less than 0.1 percent of the time. The other 99.9 percent of the
time, the removable seat installed over the tie-down space could be used.
209
The Agency re-assessed VIA’s figures and determined that foregone
passenger seat revenue would amount to $16,988 over the 20-year life of 33
economy coach cars.
(iv) Corrective Measure 3: Space for Service
Animals
210
The Agency ordered VIA to remove a platform to lower one set of double
seats in each economy coach car in order to ensure that there is space to
accommodate the service animal of a passenger travelling with one. The seats
in the Renaissance cars are on a raised platform that is designed to provide
storage space for hand luggage. This design leaves no level space to
accommodate service animals. In making changes to seats in the course of
installing a wheelchair tie-down in coach cars, VIA had altered the supporting
seat structure in a way that created space for service animal accommodation in
each tie-down area through the installation of a removable seat. However, this
seat would not be available to persons with service animals if the wheelchair
tie-down was required by a passenger using a wheelchair. It was the Agency’s
view that a dedicated space for a passenger with a service animal was required.
211
In its Preliminary Decision, the Agency had identified “the removal of
the platform from other seats in the coach cars”, which would lower a double
seat to create space for service animals, as “the obvious solution” to the lack
of space for service animals (p. 129). The Agency provided VIA with full
particulars respecting this corrective measure in its Preliminary Decision,
giving VIA all the information it needed to prepare a cost estimate had VIA
been inclined to do so.
212
Corrective measure 3 asks VIA to perform structural work it had already
undertaken when adding wheelchair tie-downs in its coach cars. VIA did not
provide the Agency with any information about how much the changes in question
had cost when it installed the wheelchair tie-down area in the coach cars. If
the costs of this work were prohibitive, VIA would have known by the time the
Agency’s Preliminary Decision was released and could have, had it chosen to do
so, provided the Agency with this information.
(v) Corrective Measure 4: Adding Two Moveable
Armrests in Coach Cars
213
The Agency ordered VIA to add two adjustable armrests in each coach car.
VIA had been advised that the Agency was considering this particular corrective
measure through the Agency’s Preliminary Decision, in which the Agency stated
its view that “VIA should . . . make the necessary modifications to provide at
least two movable aisle armrests on the double-seat side in the Renaissance
coach cars” (p. 77). The purpose of adjustable armrests was to limit the
height passengers transferring into standard coach seating from wheelchairs
would have to be lifted, which would facilitate comfortable and safe access to
standard seating.
214
When it ordered the addition of two moveable armrests in the Renaissance
coach cars, the Agency had an estimated cost of $133,125 from VIA. VIA advised
that “it is possible to include movable aisle armrests on the double-seat side
of the cars” but was concerned to “ensure that the structural integrity of the
seat is not compromised” (Final Decision, at p. 59). The estimate of $133,125
in direct costs did not include the cost of servicing the mechanism over time.
In the Agency’s view, “the direct costs of $133,125 for the installation of two
movable aisle armrests in each of the 47 Renaissance coach cars [was] a
reasonable cost given the importance of such a feature to many persons with
disabilities, and particularly to those persons who use a wheelchair” (Final
Decision, at p. 60).
(vi) Corrective Measure 5: Closing Stair
Risers on Twelve Cars
215
The Agency ordered VIA to “ensure that the stair risers on the Phase 1
Renaissance Cars are closed” (Final Decision, at p. 71). In its submissions
before the Agency, VIA indicated that all of the Renaissance cars, except those
first introduced into service (i.e. the Phase I Renaissance cars), would have
closed risers. This was necessary because closed stair risers serve as an
important orientation tool to persons with visual impairments, ensuring
improved safety and security during boarding and deboarding. In its
Preliminary Decision, the Agency asked VIA to provide information about the
feasibility and costs of closing the stair risers in the remaining 12 cars.
Since it had planned or initiated this work for all of the other Renaissance
cars, this information must have been available to VIA. However, VIA provided
no information in response to the Agency’s request. As in the case of
corrective measures 1 and 3, if the cost of closing stair risers on 12 was
excessive, VIA would have known this by the time the Agency’s Preliminary
Decision was released and could have provided the Agency with the necessary
costing information to support an argument of impracticability.
(vii) Corrective Measure 6: Marshalling Cars to
Ensure Accessibility
216
On the basis of the evidence before it, the Agency concluded that two
changes would be required to address the absence of a wheelchair accessible
washroom in the “accessible suite”. First, the order of the cars on the
Montreal-Toronto train would have to be altered. Second, VIA would have to
utilize its reservation policy to ensure that the “accessible suite” was also
made available for use as sleeping accommodation for persons using personal
wheelchairs. The Agency concluded that “[w]ith these two measures, persons
occupying these ‘accessible suites’ who cannot use the washroom facilities in
the suite or who prefer independent access would be able to use the
wheelchair-accessible washroom in the adjacent economy coach cars” (Final
Decision, at p. 68).
217
There are no obvious or significant costs associated with either of the
steps VIA would have to take to implement corrective measure 6. The Agency had
declined to find the inaccessible washroom in the “accessible suite” to be an
undue obstacle. It was of the view that, while not ideal, passengers occupying
the “accessible suite” could use the accessible washroom facilities in the
economy cars. This meant that as a corresponding corrective measure, however,
VIA had to ensure that its overnight train consists were marshalled in such a
way that the “accessible suite” would be adjacent to the wheelchair tie-down
end of an economy coach car with a wheelchair accessible washroom.
218
The record accordingly belies VIA’s assertions that it could not have
provided cost estimates of the remedial measures prior to the Agency’s final
decision because it supposedly did not know what remedial measures the Agency
was contemplating. Each remedial measure with any cost implications had been
previously identified by the Agency, and VIA’s views on the structural,
operational and economic implications of each were repeatedly sought.
219
Moreover, VIA’s assertions that, in the absence of the Renaissance
opportunity, it could only have afforded 36 new rail cars or that it would have
taken at least four years at a cost of over $477 million to develop, design,
engineer and build new rail cars, are not evidence of undue hardship in the
circumstances. Retrofitting the Renaissance cars was a reasonable, and
significantly cheaper, alternative than building new cars. The Agency’s
reasons make clear that retrofitting some cars in the Renaissance fleet to
accommodate persons using personal wheelchairs would cost nowhere near the
amounts claimed by VIA.
220
The majority judgment of the Federal Court of Appeal was also critical
of the Agency’s failure to consider the interests of passengers who are not
disabled. Noting the small percentage of passengers with disabilities who
utilize VIA’s services, the majority was of the opinion that a remedial order which
could result in significantly increased fares would unfairly economically
disadvantage other members of the public.
221
This carves out from membership in the public those who are disabled.
Members of the public who are physically disabled are members of the
public. This is not a fight between able-bodied and disabled persons to keep
fares down by avoiding the expense of eliminating discrimination. Safety
measures can be expensive too, but one would hardly expect to hear that their
cost justifies dangerous conditions. In the long run, danger is more expensive
than safety and discrimination is more expensive than inclusion.
222
There is, moreover, no evidence in the record indicating that passenger
fares are likely to increase as a result of the Agency’s decision. But even if
they do, VIA’s passenger fares already fluctuate with the expense of operating
the system. Wages, fuel, maintenance — these are among the variables. The
Agency critically assessed the cost estimates VIA provided, examining this
information in the context of VIA’s budget, corporate plan, performance
targets, total revenues, cost-recovery ratio, operational funding surplus, and
a $25 million contingency fund including operational liabilities. The Agency
concluded that “VIA has substantial funds reserved for future capital projects
and for unforeseen events” (Final Decision, at p. 23).
223
The majority also criticized the Agency’s failure to weigh the interests
of those with disabilities other than those who require the use of a personal
wheelchair. In its view, the cost of equipping rail cars to cope with all
forms of disability would severely jeopardize the viability of rail services.
224
It has never been the case that all forms of disability are engaged when
a particular one is said to raise an issue of discrimination. While there are
undoubtedly related conceptual considerations involved, they may nonetheless
call for completely different remedial considerations. A “reasonable
accommodation”, “undue hardship”, or “undue obstacle” analysis is, necessarily,
defined by who the complainant is, what the application is, what environment is
being complained about, what remedial options are required, and what remedial
options are reasonably available. Given the nature of the application and the
parties before it, the Agency would have acted unreasonably in seeking
representations about all conceivable forms of disability. Ironically, the Court
of Appeal questioned the breadth of CCD’s application as it was.
225
The threshold of “undue hardship” is not mere efficiency. It goes
without saying that in weighing the competing interests on a balance sheet, the
costs of restructuring or retrofitting are financially calculable, while the
benefits of eliminating discrimination tend not to be. What monetary value can
be assigned to dignity, to be weighed against the measurable cost of an
accessible environment? It will always seem demonstrably cheaper to maintain
the status quo and not eliminate a discriminatory barrier.
226
But the issue is not just cost, it is whether the cost constitutes undue
hardship. VIA was required to discharge the burden of establishing that
accommodating persons with disabilities was an undue hardship for it: Grismer,
at para. 32. Concrete evidence is required to establish undue hardship: Hutchinson
v. British Columbia (Ministry of Health) (No. 4) (2004), 49 C.H.R.R. D/348,
2004 BCHRT 58; Grismer, at para. 41. As in most cases, this means
presenting evidence in the respondent’s sole possession. However, as Evans
J.A. noted,
the Agency’s problems were compounded by an apparent lack of
cooperation during the administrative process on the part of VIA. Any
corporation in a regulated industry, including VIA Rail, is entitled to defend
vigorously the interests of its shareholders and customers, as well as the
public purse, from the imposition of regulatory burdens. Nonetheless, in
viewing the limited material before the Agency on the network issue and the
question of cost, I find it hard to avoid the conclusion that, if the Agency’s
analysis was based on incomplete information, VIA was, in part at least, the
author of its own misfortune. [para. 103]
Where VIA
refuses to provide evidence in its sole possession in support of its undue
hardship argument, it cannot be said that any reasonable basis exists for
refusing to eliminate an undue obstacle.
227
The Agency’s reasons show that it was acutely aware of the issue of the
cost of the remedial measures it ordered. Based on the information it had
received from VIA, the Agency made findings of fact about how much it would
cost to make 13 economy coach cars accessible to personal wheelchairs of a
standard size and how much it would cost to install moveable armrests in 47
coach cars. The Agency also found that the cost of installing a “tie-down”
space in the “accessible suite” was “likely minimal”. VIA failed to provide
the Agency with any cost estimates associated with other accessibility
renovations despite the fact these were already complete in some cars or
underway in others. It was asked at least five times for a cost estimate on
how much it would cost to widen the doors to the “accessible suite” starting
November 15, 2001. VIA stated that it could prepare one within 45 days, but
failed to provide it to the Agency. With the information it had, the Agency
determined that the cost of the remedial measures it ordered would not be
prohibitive.
228
The facts, as found by the Agency, did not justify a finding of undue
hardship based on financial cost. The relevant costs of remedying the undue
obstacles identified would, the Agency concluded, proportionally represent a
relatively insignificant sum whether viewed in the context of VIA’s entire
capital expenditure budget of $401.9 million or the approximately $100 million
VIA expected to spend renovating the Renaissance cars. The Agency found that
VIA’s financial statements “provide no indication of an inability . . . to
absorb the costs which it asserts would be incurred” (Final Decision, at p.
21). It also found that VIA was experiencing favourable economic conditions,
with an operating surplus for the years ending December 31, 2001 and December
31, 2002 and a contingency fund of $25 million dollars. In the Agency’s view,
the cost of removing the obstacles caused by VIA’s acquisition of inaccessible
rail cars could be shifted throughout VIA’s operations and mitigated through
efforts to reallocate funds. Further, the Agency determined that there would
be ways to remove the obstacles in issue that would not substantially impair
VIA’s business operations, for example, by “planning the modifications to occur
over time so as to minimize the impact on the operation of VIA’s passenger rail
network” (Final Decision, at p. 24).
229
In summary, the Agency concluded that there was no “compelling evidence
of economic impediments to addressing any of the undue obstacles in the
Renaissance Cars” (p. 24). Under s. 31 of the Canada Transportation Act ,
“[t]he finding or determination of the Agency on a question of fact within its
jurisdiction is binding and conclusive.” In the circumstances, the Agency’s
findings with respect to cost and evidence relating to undue hardship were far
from being unreasonable and are entitled to deference.
C. Did the Agency Violate VIA’s Right to
Procedural Fairness?
230
Parliament entrusted the Agency with extensive authority to govern its
own process. The Agency has all the powers of a superior court associated with
compelling attendance, examining witnesses, ordering the production of
documents, entering and inspecting property and enforcing its orders (Canada
Transportation Act, s. 25 ), including the powers of the Federal Court to
award costs (s. 25.1 ). It is responsible for enforcing the National
Transportation Agency General Rules, SOR/88-23, which govern practice and
procedure before the Agency. It may make its own rules to govern many aspects
of the conduct of proceedings before it (Canada Transportation Act, s.
17 ). Under s. 8 of the National Transportation Agency General Rules, it
has the power to grant extensions of time and did so regularly during the
course of the proceedings.
231
Considerable deference is owed to procedural rulings made by a tribunal
with the authority to control its own process. The determination of the scope
and content of a duty to act fairly is circumstance-specific, and may well
depend on factors within the expertise and knowledge of the tribunal, including
the nature of the statutory scheme and the expectations and practices of the
Agency’s constituencies. Any assessment of what procedures the duty of
fairness requires in a given proceeding should “take into account and respect
the choices of procedure made by the agency itself, particularly when the
statute leaves to the decision‑maker the ability to choose its own
procedures, or when the agency has an expertise in determining what procedures
are appropriate in the circumstances”: Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 27, citing D.
J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in
Canada (loose‑leaf), at pp. 7‑66 to 7‑70. See also Gateway
Packers 1968 Ltd. v. Burlington Northern (Manitoba) Ltd., [1971] F.C. 359
(C.A.), and Allied Auto Parts Ltd. v. Canadian Transport Commission,
[1983] 2 F.C. 248 (C.A.).
232
Throughout the proceedings, the Agency asked VIA to provide cost and
feasibility information about changes that could be made to the Renaissance
cars to enhance their accessibility. In its Preliminary Decision of March 27,
2003, the Agency ordered VIA to provide cost and feasibility estimates in 60
days about the accessibility solutions it was considering. In the 60 days
available to it, VIA prepared a three-page letter providing some, but not all,
of the cost estimates requested. The Agency reissued its Preliminary Decision
on June 9, 2003, giving VIA an additional 60 days to prepare an adequate
response. In correspondence dated July 4, 2003, the Agency advised VIA of the
specific inadequacies of its three-page response in order to assist VIA with
the preparation of a more appropriate response.
233
On July 14, 2003, VIA wrote to the Agency saying that it lacked the
internal expertise to respond to the Agency’s Preliminary Decision, that it
would take longer than 60 days, and that the government had not provided the
funding required for it to respond to the Agency’s orders. Instead of
requesting more time, VIA asked the Agency to render its final decision. On
August 7, 2003, VIA again asked the Agency to make its final decision on the basis
of the evidence before it.
234
VIA asked the Agency to render a final decision on the basis of the
evidence before it in submissions dated January 3 and 31, April 2 and June 15,
2001, in addition to the requests made on July 14 and August 7, 2003 noted
above. The last request, dated August 7, 2003 states: “VIA Rail . . . asks
for an oral hearing, if necessary. Otherwise, it asks the Agency to consider
all of these issues, facts and estimates and render its decision in final
form”. It did not ask for more time to provide cost estimates until after
receiving the final decision it had repeatedly requested.
235
The Federal Court of Appeal’s conclusion that VIA’s rights of procedural
fairness were violated by the Agency ordering corrective measures without waiting
for the cost estimates it had, more than once, directed VIA to prepare, is
difficult to sustain in the face of VIA’s persistent refusal to provide these
estimates. VIA had consistently urged the Agency to make its decision based on
the cost information it already had and did not request an extension of time to
prepare the additional cost estimates the Agency requested to assist it in
deciding whether any of the obstacles were undue. VIA had obviously made a
tactical decision to deprive the Agency of information uniquely in VIA’s
possession that would have made the evaluation more complete.
236
If VIA had attempted to implement the Agency’s orders within the time
allotted but new facts made implementation difficult, it could have asked the
Agency to reopen its decision based on the changed circumstances, under s. 32
of the Canada Transportation Act . Section 32 states:
32. The Agency may review, rescind or
vary any decision or order made by it or may re‑hear any application
before deciding it if, in the opinion of the Agency, since the decision or
order or the hearing of the application, there has been a change in the facts
or circumstances pertaining to the decision, order or hearing.
237
VIA did not petition the Agency to review its decision on the basis of
any new facts it learned through the Schrum report. It elected instead to
appeal to the Federal Court of Appeal, seeking relief based on an evidentiary
vacuum of its own creation. Had it complied with the Agency’s requests for cost
information during the course of the proceedings, or had it been denied
reasonable requests for extensions of time to comply with those requests, VIA’s
procedural fairness argument would have had an air of fairness to it. But
when, instead, it seeks to offer this evidence only after the final decision it
repeatedly requested was made without, moreover, any reasonable explanation for
why such information could not have been available during the
proceedings, no issue of unfairness arises.
238
VIA’s argument that it was unable to seek expert cost opinions because
it could not know what remedial measures the Agency would order in the final
decision is untenable. The Agency’s final decision did not order any remedial
measures for which VIA had not already been asked to prepare feasibility and
cost estimates. The specificity of the obstacles and possible solutions
identified in the Preliminary Decision a number of months earlier provided VIA
with the information necessary to comply with the show cause order, had it
wished to do so. VIA already knew how to remedy many of the obstacles
identified, since the work eventually ordered by the Agency had already been
done or was underway. VIA’s procedural fairness argument amounts, essentially,
to a complaint that its own lack of cooperation throughout the Agency’s process
entitles it to an additional opportunity to be heard.
239
VIA’s position during the proceedings was that it lacked the time,
expertise and money to prepare cost estimates. The record does not explain how
Peter Schrum, a third party, was able to prepare a cost estimate in 37 days
once the final decision was released, or how VIA was able to pay for it. The
Schrum report, which reached conclusions fundamentally at odds with some of the
Agency’s binding factual findings, estimated a minimum cost of $48 million to
implement the Agency’s decision. This estimate was based on an assumption that
47 coach cars and 17 service cars would be the subject of a major reconstruction,
even though the Agency’s decision required that only 13 economy coach cars
would require significant modifications. Considerably less significant
modifications were ordered for the 17 service cars in operation, the 12 economy
coaches that lacked closed stair risers and the coaches that required only two
more moveable armrests to be installed (all 47) or one double-seat to be
removed (33 economy coaches).
240
The Schrum report appears to assume that each corrective action the
Agency ordered would require engineering work from the ground up without taking
into consideration the fact that many of the modifications the Agency ordered
had been completed by VIA in the past. It indicates, for example, that an
engineering feasibility study, concept development and concept refinement are
steps that must be taken to add a wheelchair tie-down to the sleeper unit in
the “accessible suite” and to lower one row of double seats to floor level to
accommodate service animals in economy coach cars. This fails to take into
account that VIA already had some, if not full, practical experience about how
to effect these changes from having implemented them in the past.
241
The Agency’s reasons are clear that the corrective measures it ordered
would cost nowhere near $48 million. Yet, the Federal Court of Appeal
concluded that the Agency ought to have waited until it had the Schrum report
before ordering corrective measures. This appears to be based in part on the
assumption that the Schrum report provided an accurate estimate of the costs
in issue. It reasoned that “before costs of the magnitude envisioned by the
Schrum report are incurred” (para. 76), the Agency must be required to
reconsider its decision. Yet, the conclusions reached by Mr. Schrum were untested
by the Agency because the report was introduced after the Agency’s proceedings
were over. It is, in fact, difficult to determine the basis for the
admissibility of Mr. Schrum’s report as “fresh evidence”.
242
The timing of the Schrum report and its untested conclusions render it
an inappropriate basis for interfering with the Agency’s factual findings and
remedial responses. To question the reasonableness of the Agency’s decision on
the basis of evidence VIA could, and ought, to have submitted to the Agency in
a timely way is to render the Agency process vulnerable to cavalier attitudes
before it, leaving the “real” case to unfold before the Federal Court of
Appeal.
243
This misconstrues the relationship between the Agency and the court.
The Agency has the expertise and specialized knowledge. That is why it is the
body charged with balancing all the competing interests, including cost and the
public interest. The court is a reviewing body, not a court of first
instance. And it should not be permitted to be transformed into a body of
first instance, or entitled to second-guess the responsibilities of the Agency,
through the mechanism of evidence produced after the fact which could have been
produced for the Agency proceedings.
244
The Agency provided VIA with adequate time and opportunity to comply
with its directions. Though VIA clearly could have commissioned the Schrum
report and provided it to the Agency within the time allotted, it did not. The
Agency had the procedural power to grant extensions of time or reopen decisions
at its disposal if it was of the view that VIA was attempting to comply but
could not. No such extensions or reconsiderations were requested by VIA.
245
The Agency, following its multi-year dealings with the parties, was in
the best position to control its own process with a view to the bona fides
and strategic choices of the parties. There are no grounds for a reviewing
court to interfere with the Agency’s discretion to release its final decision
without waiting for VIA to produce the cost estimates it had repeatedly and
explicitly refused to provide. In the circumstances, VIA was not a victim of
procedural unfairness.
IV. Conclusion
246
For the foregoing reasons, therefore, I would allow the appeal and
restore the Agency’s decisions with costs throughout to CCD.
The reasons of Binnie, Deschamps, Fish and Rothstein JJ. were delivered
by
247
Deschamps and Rothstein JJ.
(dissenting) — Accommodation is an issue arising in many contexts and it is the
duty of this Court to give clear guidance on what legal principles must be
adhered to by those adjudicating accommodation claims. It is not helpful to
rely on nothing more than a judgment call to determine what is practicable.
Parliament has set forth in the Canada Transportation Act, S.C. 1996, c.
10 (“Act ”), a national transportation policy which consists of a number of
objectives including human rights objectives. The Act also contains a
statutory framework for determining human rights applications. This Court
should have regard to the policy and the framework established by Parliament
and common law principles developed by this Court in determining the
requirements of reasonable accommodation. It is troubling that the majority
would uphold an administrative tribunal’s decision by finding that it applied
the common law principles when the tribunal expressly rejected them. It is also
problematic that the majority would uphold the tribunal’s decision when a basic
element, namely the estimated cost of accommodation, was not determined. The
majority would forego both the proper legal analysis and ignore the lacking
element of cost determination on the basis of deference to the tribunal. With
respect, deference is not a proper justification for ignoring such errors.
248
The litigation originates from a decision by VIA Rail Canada Inc.
(“VIA”) to purchase 139 passenger rail cars. The Council of Canadians with
Disabilities (“CCD”) claims these cars present “undue obstacles” affecting the
mobility of persons with disabilities using wheelchairs. CCD made an
application to the Canadian Transportation Agency (“Agency”) which subsequently
ordered VIA to make modifications to the rail cars. The Federal Court of
Appeal allowed VIA’s appeal and remitted the matter to the Agency for
redetermination, taking account of VIA’s network and cost considerations.
249
We agree with the conclusion reached by the Federal Court of Appeal and
would remit the matter to the Agency for redetermination having regard to these
reasons.
I. Factual Background
A. The Parties
250
CCD was founded in 1976 and is a national advocacy organization for
persons with disabilities. CCD is a coalition of representatives from
provincial disability organizations, in addition to other major national
disability organizations. In past cases before this Court, CCD has appeared as
an intervener on a number of occasions on matters relating to human rights and
equality issues under the Canadian Charter of Rights and Freedoms .
251
VIA was established in 1977 and became a Crown corporation in 1978 with
responsibility for passenger rail transportation in Canada. The Government of
Canada (“Government”) is VIA’s sole shareholder. Since its inception, VIA has
been dependent on subsidies from the Government to supplement the revenue it
receives from passengers. VIA’s government funding requirements, including
defined capital expenditures, must be approved annually by the Treasury Board
under the Financial Administration Act, R.S.C. 1985, c. F‑11 .
252
The Agency, which was an intervener before this Court, is a federal,
administrative tribunal that is mandated under the Act . The statutory mandate
of the Agency deals mainly with the economic regulation of carriers and modes
of transportation. Among its responsibilities, the Agency is granted regulatory
and adjudicative powers to deal with “undue obstacles” to the mobility of
persons with disabilities in rail passenger transportation.
B. Purchase of the Renaissance Rail Cars
253
In June 1998, the House of Commons Standing Committee on Transport
issued a report entitled The Renaissance of Passenger Rail in Canada
which stated that “almost every witness that appeared before us said that VIA
Rail could not continue in its present state” (p. 17) and that “every time a
train leaves the station, VIA Rail loses money” (p. 4). The Standing Committee
reported that all services and segments of VIA’s network operate at a deficit,
for a total loss of $196 million in 1997.
254
The Standing Committee found that the cost of maintaining and operating
VIA’s aging rail cars, with current levels of funding, was a “death spiral”
that would lead to “the inevitable demise of VIA Rail” (p. 5). The Standing
Committee’s report indicated that VIA needed to increase train frequency for
its operations in the Quebec City-Windsor corridor. To enable VIA to renew and
sustain its rail cars on a timely basis simply to maintain existing service
levels, the Standing Committee found that the Government would need to allocate
an additional $800 million over the next few years for capital expenditures to
VIA. The Government did not elect to do so.
255
In 2000, the Treasury Board granted a total of $401.9 million for all of
VIA’s capital expenditures, including infrastructure improvements, station
repairs, purchase of locomotives and rail cars, operations, safety and
signalling. This was considerably less than VIA had requested. Of the $401.9
million, approximately $130 million was allocated to the purchase of rail cars.
256
On September 28, 2000, VIA entered into a contract, effective on
December 1, 2000, to purchase 139 rail cars. The initial cost of the purchase
and commissioning into service of these cars was $130 million. VIA states that
the purchase of the rail cars was “a unique, one-time opportunity” on account
of their low cost and given that they were readily available. According to VIA,
the replacement cost of these rail cars was $400 million and it would take four
years to design and obtain delivery of alternative rail cars.
257
Designed by a British, French, German, Dutch and Belgian consortium that
was formed in 1990, the rail cars were originally called the “Channel Tunnel
Nightstock Cars” because they had been designed for service between continental
Europe and the northern regions of the United Kingdom. According to VIA, one
of the main reasons they became available for purchase was deregulation in the
European airline industry which resulted in a drop in airfares to a level at which
overnight rail trips were no longer cost competitive. VIA made a successful
bid to purchase the rail cars. These cars became known as the Renaissance
cars, an apparent reference to the title of the Report of the Standing
Committee on Transport that alerted the Government to the need to address VIA’s
financial and operational difficulties.
258
VIA states that the Renaissance rail cars reflected European and British
Rail regulations at the time of their design which included mandatory requirements
for persons with disabilities. While VIA concedes that the Renaissance rail
cars may not meet all desires of all persons with disabilities, they are an
addition to its existing fleet within its budgetary constraints to deal with
the urgent situation that it then faced. VIA submitted that it made
improvements to the features of the Renaissance rail cars through its
Accessibility Program. The features of the rail cars include: use of braille
signage for visually impaired passengers, training for on-board personnel in
providing assistance to persons with disabilities, handrails and grab bars,
space to accommodate service animals, visual displays for communication of
announcements for persons with a hearing impairment, washrooms with various
accessibility features, auditory and visual smoke alarms, storage space for
personal wheelchairs and provision of on-board wheelchairs where required, four
moveable armrests in each car, as well as a wheelchair sleeping accommodation,
and tie-downs and washrooms to accommodate wheelchair users.
C. CCD’s Application to the Agency
259
On December 4, 2000, CCD filed an application with the Agency objecting
to the purchase of the Renaissance rail cars. It alleged that numerous aspects
of these rail cars would constitute “undue obstacles” to the mobility of
persons with disabilities, mainly those using wheelchairs.
260
When CCD was advised that VIA had already purchased the Renaissance rail
cars before the application was made, CCD sought: (i) an interim order from the
Agency to stop the delivery of the Renaissance rail cars to VIA, pending the
Agency’s final determination of the application; and (ii) an order that VIA not
enter into any contracts for the modification of the Renaissance rail cars, or
take any additional steps furthering the purchase of these rail cars. The
Agency declined to make these orders on the grounds that they would cause VIA
substantial harm.
261
At this stage, CCD’s application was pursued through an inquiry by the
Agency into specific claims that aspects of the Renaissance rail cars were
“undue obstacles” to the mobility of persons with disabilities, mainly those
using wheelchairs.
II. Summary of Decisions Below
262
The proceedings in this matter have been lengthy, technical, and at
times acrimonious. From the time CCD filed its initial application to the
rendering of the Agency’s final determination, some two years and ten months
passed during which over 70 decision and orders were issued by the Agency.
A. Position of the Parties During the
Inquiry
263
In the course of the Agency’s inquiry, CCD took the position that
“[p]ersons with disabilities had been waiting decades for VIA Rail’s next
generation of passenger trains.” CCD’s position was that these rail cars should
be considered “newly manufactured” and subject to higher accessibility
standards. CCD was of the view that the Renaissance rail cars should never
have been purchased.
264
For its part, from very early on in the Agency’s inquiry, VIA objected
to the Agency’s jurisdiction in this matter. As the scope of the Agency’s
inquiry grew larger, VIA consistently put to the Agency that it was exceeding
its mandate, and was taking a monitoring role in VIA’s affairs that was
improper. VIA maintained that the Agency was interfering in the carrier’s
management, and in the decision that VIA made to purchase the Renaissance rail
cars with the limited capital funds approved by the Government. VIA took the position
that these rail cars could not be considered “newly manufactured”, and that
they offered reasonable accessibility to passengers with disabilities.
B. Preliminary Decision of Agency (No.
175-AT-R-2003)
265
On March 27, 2003, the Agency delivered its preliminary findings on the
46 accessibility concerns raised by CCD (“Preliminary Decision”). The majority
opinion of the Agency determined that the Renaissance rail cars were “newly
manufactured” cars and should meet the higher level of accessibility for new
cars that is set out in the Agency’s 1998 Code of Practice — Passenger Rail
Car Accessibility and Terms and Conditions of Carriage by Rail of Persons with
Disabilities (“Rail Code”).
266
For the 46 concerns raised by CCD, the Agency first considered whether
each constituted an “obstacle” to the mobility of persons with disabilities.
The Agency largely relied on the dimensions of a “Personal Wheelchair”, defined
in the Canadian Standards Association, CAN/CSA-B651-95,
Barrier-Free Design Standard and referred to in the Rail Code, to make
its technical findings based on centimetre-by-centimetre physical inspections
it made of the Renaissance rail cars.
267
In determining whether an “obstacle” that it found to exist was “undue”,
the Agency rejected, in the context of Part V of the Act , the applicability of
the undue hardship test found in human rights legislation and jurisprudence:
“[a]lthough . . . the Agency rejects the applicability of the undue hardship
test in the context of Part V of the CTA , the Agency recognizes that some of
the factors identified by CCD concerning undue hardship may be applicable to an
undue obstacle determination” (p. 36).
268
Of the 46 features of the Renaissance rail cars raised by CCD, the
majority opinion of the Agency made a preliminary finding that 14 features
constituted “undue obstacles”. The Agency ordered VIA to show cause why these
preliminary findings should not be made final.
269
One of the three members of the Agency’s panel issued a dissenting
opinion. Member Richard Cashin found that “there is no evidence that th[e]
obstacles [found undue by the majority] will not be accommodated by VIA’s
network” and that “the carrier can and will accommodate the needs of persons
with disabilities within its network” (pp. 149-50). However, Mr. Cashin’s term
expired on June 30, 2003, so he did not participate in the subsequent final
decision by the Agency.
C. Final Decision of Agency (No.
620-AT-R-2003)
270
On October 29, 2003, the Agency delivered its final decision (“Final
Decision”). The Agency found 14 “undue obstacles” (although not precisely the
same 14 as in its Preliminary Decision) and ordered VIA to make specific
modifications to the Renaissance rail cars to eliminate the obstacles.
D. Federal Court of Appeal, [2005] 4
F.C.R. 473, 2005 FCA 79
271
The Federal Court of Appeal allowed VIA’s appeal on March 2, 2005.
Sexton J.A., writing for the majority, held at para. 43 that the Agency’s
decisions were patently unreasonable because “it confined itself to considering
only alterations to the Renaissance cars rather than considering whether VIA’s
network could be flexible enough to accommodate these disabilities”. Sexton
J.A. added that the Agency “failed to conduct the necessary balancing” required
by the Act , including the interests of persons without disabilities, the cost
of the modifications ordered, and the interests of other persons with
disabilities not using wheelchairs.
272
The Federal Court of Appeal pointed to evidence filed in that court for
the first time by VIA, estimating the total cost of the modifications
determined in the Agency’s Final Decision. This evaluation (the Schrum report)
sets the cost between $48 and $92 million, and was described by Sexton J.A. as
“the only objective third party report which comprehensively estimates the
costs of all the changes ordered by the Agency” (para. 69).
273
Evans J.A. concurred in allowing the appeal, finding that the Agency
acted in breach of the duty of procedural fairness. He found that the Agency’s
preliminary decision should have specifically invited VIA to submit evidence
demonstrating how it proposed to mitigate the obstacles in the Renaissance rail
cars through its network. He also found that, given VIA’s submission that
providing cost evidence in response to the Agency’s Preliminary Decision was
unduly onerous, the Agency should have afforded VIA an opportunity to submit a
third-party cost estimate after the Agency’s “final” order specifying
the modifications that it required VIA to make to the Renaissance rail cars.
III. Issues
274
CCD states the issues as follows:
(1) the correct interpretation of Part V of the
Act ;
(2) the fairness of the process; and
(3) the reasonableness of the Agency’s decision.
In addition,
VIA raises jurisdictional questions.
275
The jurisdictional questions will be addressed before dealing with the
interpretation of the Act . In view of our conclusion on the interpretation of
the Act — a question of law — it will not be necessary to deal with the
questions of fairness of the process or reasonableness of the Agency’s
decision.
IV. Analysis
276
Given that the issues under review arose from a decision of an
administrative tribunal, we begin by identifying the appropriate standard of
review. We then provide a brief contextual overview of the governing
legislation, with a focus on the declaration of the National Transportation
Policy in s. 5 of the Act , and the framework in Part V of the Act to remove
undue obstacles to the mobility of persons with disabilities. This is followed
by an analysis that reconciles Part V of the Act with the applicable principles
of human rights law. We then set out the legal framework for analysis of
applications heard by the Agency under s. 172 . Finally, we evaluate the
Agency’s decision on the issues raised in this appeal.
A. Standard of Review
(1) Segmentation and Terminology
277
The majority finds that the Agency “made a decision with many component
parts, each of which fell squarely and inextricably within its expertise and
mandate. It was therefore entitled to a single, deferential standard of
review” (para. 100). We are unable to agree with this approach.
278
The standard of review jurisprudence recognizes that segmentation of a
decision is appropriate in order to ascertain the nature of the questions
before the tribunal and the degree of deference to be accorded to the
tribunal’s decisions on those questions. In Canada (Deputy Minister of
National Revenue) v. Mattel Canada Inc., [2001] 2 S.C.R. 100, 2001 SCC 36,
at para. 27, Major J. stated:
In general, different standards of review will apply to different legal
questions depending on the nature of the question to be determined and the
relative expertise of the tribunal in those particular matters.
In Law
Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20,
although there were no legal questions to be examined separately in that case,
Iacobucci J. clearly indicated that there are situations in which extrication
is appropriate (para. 41). See also Mattel, Inc. v. 3894207 Canada Inc.,
[2006] 1 S.C.R. 772, 2006 SCC 22, at para. 39. Subjecting all aspects of a
decision to a single standard of review does not account for the diversity of
questions under review and either insulates the decision from a more exacting
review where the pragmatic and functional considerations call for greater
intensity in the review of specific legal questions, or subjects questions of
fact to a standard that is too exacting. A tribunal’s decision must therefore
be subject to segmentation to enable a reviewing court to apply the appropriate
degree of scrutiny to the various aspects of the decision which call for
greater or lesser deference.
279
Moreover, in her reasons, Abella J. introduces a new term —
“demonstrably unreasonable” (para. 102). We must respectfully express
reservations about introducing another term to an already complex area of the
law which can only lead to ambiguity. We agree with the majority that it is
difficult to determine the degrees of differences as between what is
unreasonable and what is patently unreasonable. In an appropriate case, of
which this is not one, the Court may engage in a review of the standards of
unreasonableness and patent unreasonableness. Until that occurs, we do not see
the need to add to the lexicon of standard of review terminology.
(2) Pragmatic and Functional Approach
280
Although the arguments were wide-ranging in this appeal, our reasons
will only address the issues of the Agency’s jurisdiction to adjudicate CCD’s
application and the Agency’s determination of the applicable human rights law
principles in the federal transportation context.
281
The factors to be considered in the pragmatic and functional approach
were set out in Dr. Q v. College of Physicians and Surgeons of British
Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, at paras. 26ff. In our view,
consideration of all of the factors points to no deference being accorded to
the Agency’s decision.
282
The Agency’s jurisdiction and the determination of the applicable human
rights law principles in the federal transportation context are pure questions
of law. Although in VIA Rail Canada Inc. v. National Transportation Agency,
[2001] 2 F.C. 25, the Federal Court of Appeal was seized of a case that
concerned the undueness of an obstacle, the question was whether the reasons given
by the Agency were sufficient. The jurisdiction of the Agency and the
applicable human rights principles were not at issue. Thus, this being the
first opportunity that a court has had to interpret these questions, the
resolution of this case will have an important precedential value. This calls
for an exacting standard of review. See Canada (Director of Investigation
and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paras. 36-37, and Chieu
v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84,
2002 SCC 3, at para. 23.
283
Furthermore, the Agency is not protected by a privative clause in
respect of questions of law or jurisdiction. Rather, there is a statutory
appeal procedure on such questions under s. 41(1) of the Act . This contrasts
with the Agency’s factual determinations which are “binding and conclusive”,
under s. 31 of the Act .
284
On questions of jurisdiction and the determination of the applicable
human rights law principles, the Agency does not have greater relative expertise
than a court. The Agency is required to resort to human rights principles
which are not comprehensively set out in its home statute and in respect of
which the Agency, whose prime function is economic regulation of transportation
in a largely deregulated environment, does not have specific expertise. This
factor points to a standard of review that will be less deferential.
285
Finally, the purpose of s. 172 of the Act is to grant the Agency an
adjudicative role to consider applications from persons with disabilities who
allege the existence of undue obstacles to their mobility in respect of a
federal transportation carrier. The issues generally involve a dispute between
an aggrieved party and the transportation carrier. While the Agency’s ultimate
analysis, in those cases, involves a balancing of interests, the questions of
the Agency’s jurisdiction and the determination of the applicable human rights
law, do not.
286
Considering all of these factors, the questions of the Agency’s
jurisdiction and the determination of the applicable human rights law
principles in the federal transportation context are both to be reviewed on the
standard of correctness.
B. The National Transportation Policy
287
We commence with a discussion of the National Transportation Policy as
declared in s. 5 of the Act . This provision gives context for the entire Act ,
including s. 172 . All relevant sections of the Act are reproduced in the
Appendix.
288
Section 5 is a declaratory provision which states Canada’s National Transportation
Policy. Section 5 contains a number of objectives, amongst which are:
5. It is hereby declared that a safe,
economic, efficient and adequate network of viable and effective transportation
services accessible to persons with disabilities and that makes the best use of
all available modes of transportation at the lowest total cost is essential to
serve the transportation needs of shippers and travellers, including persons
with disabilities . . . .
289
The objective of accessible transportation to persons with disabilities
is an issue of human rights. It is critical to enabling persons with
disabilities to gain employment, pursue educational opportunities, enjoy
recreation, and live independently in the community. Recognizing this,
Parliament included the accessibility of the federal transportation network to
persons with disabilities among the objectives of the National Transportation
Policy, and expressly granted the Agency jurisdiction to deal with undue
obstacles to the mobility of persons with disabilities in Part V of the Act .
290
There is therefore no doubt that accessibility is an important policy
objective of the legislation. However, several of the objectives set out in
s. 5, including accessibility, are to be pursued “as far as is practicable” — a
term that appears three times in s. 5, indicating that the objectives are not
expected to be achieved to the level of perfection. Thus, s. 5(g)(ii)
provides that “each carrier or mode of transportation, as far as is
practicable, carries traffic [under] conditions that do not constitute . . . an
undue obstacle to the mobility of persons, including persons with
disabilities”. Further, the words of s. 5(g)(ii) recognize that the
mobility of persons may be subject to obstacles, but the objective of the
Policy is that mobility not be impeded by undue obstacles.
C. Part V of the Act : Dealing With Undue
Obstacles to the Mobility of Persons With Disabilities
291
Under Part V of the Act , Parliament granted the Agency jurisdiction to
deal with undue obstacles to the mobility of persons with disabilities through
two avenues. First, s. 170 of the Act grants certain regulatory powers to the
Agency:
170. (1) The Agency may make regulations for
the purpose of eliminating undue obstacles in the transportation network under
the legislative authority of Parliament to the mobility of persons with
disabilities, including regulations respecting
(a) 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;
(b) the training of personnel employed at or in those
facilities or premises or by carriers;
(c) tariffs, rates, fares, charges and terms and
conditions of carriage applicable in respect of the transportation of persons
with disabilities or incidental services; and
(d) the communication of information to persons with
disabilities.
292
Second, s. 172 of the Act sets out the adjudicative jurisdiction of the
Agency:
172. (1) 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 obstacle to the mobility of
persons with disabilities.
(2) Where the Agency is satisfied that
regulations made under subsection 170(1) that are applicable in relation to a
matter have been complied with or have not been contravened, the Agency shall
determine that there is no undue obstacle to the mobility of persons with
disabilities.
(3) On determining that there is an undue
obstacle to the mobility of persons with disabilities, the Agency may require
the taking of appropriate corrective measures or direct that compensation be
paid for any expense incurred by a person with a disability arising out of the
undue obstacle, or both.
293
As we have said, accessibility for persons with disabilities is a human
rights issue. Therefore, the determination of the applicable human rights
principles governing the Agency’s adjudication of applications under s. 172 is
at issue in the present appeal. These human rights principles do not operate in
a vacuum. A body of case law has developed in Canada dealing with human rights
adjudication. Therefore, it is useful to review prevailing human rights jurisprudence
to understand how Part V of the Act is reconciled with it in a coherent
framework.
D. Reconciling Human Rights Law and Part V
of the Canada Transportation Act
294
In British Columbia (Public Service Employee Relations Commission) v.
BCGSEU, [1999] 3 S.C.R. 3 (“Meiorin”), this Court laid down the
approach to human rights claims. The framework in Meiorin was described
in language specific to the employment context. However, it has been applied
to other fields such as the licensing of motorists in British Columbia
(Superintendent of Motor Vehicles) v. British Columbia (Council of Human
Rights), [1999] 3 S.C.R. 868.
295
It is useful to set forth the Meiorin approach verbatim as found
at paras. 54-55 of the reasons of McLachlin J. (as she then was) in that case:
Having considered the various alternatives, I
propose the following three-step test for determining whether a prima facie
discriminatory standard is a BFOR [bona fide occupational requirement].
An employer may justify the impugned standard by establishing on the balance of
probabilities:
(1) that the employer adopted the standard
for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular
standard in an honest and good faith belief that it was necessary to the
fulfilment of that legitimate work-related purpose; and
(3) that the standard is reasonably
necessary to the accomplishment of that legitimate work-related purpose. To
show that the standard is reasonably necessary, it must be demonstrated that it
is impossible to accommodate individual employees sharing the characteristics
of the claimant without imposing undue hardship upon the employer.
This approach is premised on the need to develop
standards that accommodate the potential contributions of all employees in so
far as this can be done without undue hardship to the employer. Standards may
adversely affect members of a particular group, to be sure. But as Wilson J.
noted in Central Alberta Dairy Pool, supra, at p. 518, “[i]f a
reasonable alternative exists to burdening members of a group with a given
rule, that rule will not be [a BFOR]”. It follows that a rule or standard must
accommodate individual differences to the point of undue hardship if it is to
be found reasonably necessary. Unless no further accommodation is possible
without imposing undue hardship, the standard is not a BFOR in its existing
form and the prima facie case of discrimination stands.
296
The approach in Meiorin has guided this Court’s subsequent
analyses in human rights cases and in our view it should be the guide in the
federal transportation context. Human rights in respect of transportation of
persons with disabilities are specifically provided for in the Act . Section
171 of the Act provides that the Agency and the Canadian Human Rights
Commission are to coordinate their activities and foster complementary policies
and practices in relation to the transportation of persons with disabilities.
Both s. 5 and Part V of the Act , as discussed, identify the objective of
removing “undue obstacles to the mobility of persons with disabilities” — a
human rights objective. It follows that the transportation of persons with
disabilities should be guided by human rights principles as established in Meiorin.
297
Having regard to these considerations, applying Meiorin in the
federal transportation context, the Agency’s adjudication of applications under
s. 172 of the Act requires that the following analysis be conducted:
(1) The applicant must satisfy the
Agency of the existence of a prima facie obstacle to the mobility of
persons with disabilities.
(2) The burden then shifts to the
carrier to demonstrate, on a balance of probabilities, that the obstacle is not
undue because:
(i) it is rationally connected to a
legitimate objective;
(ii) the carrier has opted not to eliminate
the obstacle based on an honest and good faith belief that it was necessary for
the fulfilment of that legitimate objective; and,
(iii) not eliminating the obstacle is
reasonably necessary for the accomplishment of that legitimate objective.
We will
elaborate on the components of this test in the course of the analysis which
follows in order to provide guidance to the Agency and reviewing courts on the
correct approach in law to interpreting s. 172 of the Act .
E. The Obstacle Analysis
298
In the transportation context, the prima facie obstacle analysis
must commence by assessing the alleged obstacle. For the Agency to conclude
that an obstacle exists, it must be of more than minor significance to the mobility
of persons with disabilities. Perfection is not the standard. The reference to
“practicability” in the National Transportation Policy means that not every
obstacle must be removed. Where the Agency finds that the alleged obstacle is
not of sufficient significance, the analysis performed by the Agency is at an
end, and the application should be dismissed.
F. The Undueness Analysis
299
Once the Agency determines that an obstacle is of sufficient
significance, it must then determine if it constitutes an undue obstacle to the
mobility of persons with disabilities.
300
The first stage is to determine whether the obstacle exists owing to a
rationally connected legitimate purpose. Section 5 of the Act declares that a
number of objectives and purposes are associated with what is “essential to
serve the transportation needs of . . . travellers, including persons with
disabilities”. These objectives or purposes are intimately tied to the
Canadian transportation context and are specifically crafted by Parliament as
goals to be achieved by a carrier. When there is evidence that a carrier has
pursued one or more of the purposes in s. 5 of the Act , the Agency must
consider them to be legitimate in its analysis. This, of course, does not
preclude a carrier from advancing other objectives, or the Agency from deciding
whether, in the context, such objectives constitute a legitimate purpose in a
human rights analysis. Legitimate purposes contained in the National
Transportation Policy that are relevant to rail passenger transportation
include:
(a) safety objectives;
(b) efficiency objectives;
(c) the opportunity to compete;
(d) economic viability; and
(e) competitive fares.
In pursuing
the goals of safety, efficiency, economic viability, or any other legitimate
purpose, obstacles to the mobility of persons with disabilities may be created,
knowingly or otherwise. However, as long as these obstacles exist owing to a
rationally connected legitimate purpose, the first stage of the undueness
analysis will be satisfied.
301
Several of the Policy’s objectives involve economic considerations.
With respect to the objective of economic viability, VIA is not economically
viable because it requires subsidization. In such a situation, the objective
of economic viability must be interpreted as a policy of minimizing, to the
extent reasonably possible, reliance on government subsidies. Where revenues
do not cover a carrier’s expenses, assuming the carrier is being operated
efficiently and is maximizing passenger revenue, costs it would have to incur
to eliminate an obstacle must be recovered by reducing other expenses through
cutbacks in services or from the taxpayer through increased subsidies.
Therefore, the continuing existence of obstacles due to financial cost may be
rationally connected to a legitimate purpose.
302
Once a carrier has established that the obstacle is rationally connected
to a legitimate purpose, the Agency must, at the second stage, consider whether
the continuing existence of the obstacle is based on an honest and good faith
belief that it is necessary for that legitimate purpose.
303
Finally, the third stage of the undueness analysis involves an
assessment of whether the carrier’s refusal to eliminate obstacles is
reasonably necessary to achieve the legitimate purpose relied upon. Whether
the existence of an obstacle is reasonably necessary requires an objective
assessment of: (a) reasonable alternatives made available by the carrier to
persons with disabilities affected by the obstacle; and, (b) constraints that
may prevent the removal of the obstacle in question.
304
Where there are reasonable alternatives made available by the carrier to
persons with disabilities, then the third part of the undueness analysis will
be satisfied and the obstacle will not be found to be undue. A reasonable
alternative must respect the dignity of the person with disabilities. It may
be a functional alternative, not necessarily an identical service, and the
alternative need not be the same for all routes. There may be remedies to an
obstacle found on an individual car that do not involve eliminating the obstacle,
but rather provide an alternative which enables the obstacle to be
circumvented. The search for reasonable alternatives will vary with the
circumstances of individual obstacle assessments. It will be for the Agency to
determine what may constitute a reasonable alternative in specific cases.
305
In the present case, VIA submitted evidence that reasonable alternatives
existed through its “network” to accommodate persons with disabilities. VIA
said that its network design “includes the reservation system, the alternative
transportation policy, ground services, special handling services, train
accommodation, employee training and special service requests”. Indeed, as a
defence that could be raised by a carrier, the Canadian Human Rights Commission
took the position in its factum, at para. 25, that:
. . . there is nothing inherently problematic with the suggestion that
in some circumstances it will be appropriate . . . to look at the respondent’s
entire network before concluding that an obstacle is “undue”.
306
We have referred to VIA’s “network” because that is the term used in s.
5 of the Act . It has been used by the parties, the Agency and the Federal
Court of Appeal. However, to avoid ambiguity, we would emphasize that an
obstacle in the passenger equipment on one route is not circumvented by
accessible equipment on another route. In other words, a reasonable
alternative must be a relevant alternative for the passenger. Rail passengers
may be travelling for business or pleasure. But practically, they intend to
travel from an origin to a destination. When considering the mobility of
persons with disabilities, it is the transportation of passengers between
specific origins and destinations that is considered. For instance, undue
obstacles on the service between Winnipeg and Saskatoon are not remedied by
accessible travel between Ottawa and Toronto.
307
If there are no reasonable alternatives that enable persons with
disabilities to circumvent an obstacle, then the Agency must continue with its analysis
with respect to constraints that may stand in the way of removing the obstacle.
308
Where there are structural constraints that make it impossible to remedy
the obstacle, then the third part of the undueness analysis will be satisfied
and the obstacle will not be found to be undue. However, where modifications
are possible from an engineering perspective, then the Agency must continue
with its analysis into the other constraints associated with such
accommodation.
309
In VIA Rail Canada Inc. v. National Transportation Agency, the
Federal Court of Appeal referred to factors that were relevant to accommodating
persons with disabilities requiring the assistance of an escort, e.g.,
availability of personnel, time required for providing assistance and ability
to contract occasional workers. The factors will be dependent on the circumstances
of each case. However, almost any accommodation can be evaluated in terms of
cost, such as that associated with personnel or modifications to equipment.
Consequently, in almost every case, the remaining constraint to the removal of
an obstacle will be the cost involved. At this stage, the Agency must engage
in balancing the significance of the obstacle with the cost involved in
removing the obstacle. Where the cost of removing the obstacle is
disproportionate to the significance of the obstacle to the mobility of persons
with disabilities, then the third part of the undueness analysis will be
satisfied and the obstacle will not be found to be undue.
310
The consideration of cost in human rights case law is well established.
In Meiorin, McLachlin J. stated at para. 63 that the financial cost of
the method of accommodation is a relevant factor. In Central Alberta Dairy
Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489, at pp.
520-21, “financial cost” is the first factor to which Wilson J. refers as being
relevant to undue hardship. Similarly, in Commission scolaire régionale de
Chambly v. Bergevin, [1994] 2 S.C.R. 525, at p. 546, Cory J. observed:
“What may be eminently reasonable in prosperous times may impose an
unreasonable financial burden on an employer in times of economic restraint or
recession.” Therefore, the cost required to remedy an obstacle must be
considered by the Agency before it orders that the obstacle be removed.
311
The scope of the Agency’s inquiry into cost will necessarily vary with
the nature of the application. Cases under s. 172 have ranged from those
involving a single obstacle to the present case in which 46 obstacles were
alleged by CCD. The Agency’s approach in each case must be tailored to meet
the circumstances. In a case in which many obstacles are alleged, the
difficulty of the Agency’s work is compounded. Where a number of obstacles are
involved, the Agency will have to consider the overall cost associated with
their elimination and the impact on the carrier if such cost is imposed. Not
only will the Agency be required to consider the global cost, but it must also
consider whether the elimination of some obstacles may be justified in relation
to the cost involved while the elimination of others may not.
312
Where an applicant seeks recourse to the Agency to order the removal of
an obstacle, the burden of funding the required modifications by the carrier,
especially a subsidized carrier, may result in a finding that in all the
circumstances, the obstacle cannot be said to be undue. This is not to say
that the obstacle may not be a serious matter for persons with disabilities.
However, if there is to be recourse in such a case, it involves a policy
decision that lies with the Government and is not within the adjudicative role
of the Agency.
313
In summary, we can say that the human rights principles that apply in
the federal transportation context are essentially the same as those applicable
in other human rights cases.
G. Analysis of the Agency’s Decisions
314
Two questions must be dealt with: the correctness of the Agency’s
assertion of jurisdiction, and its determination of the applicable human rights
law principles in the federal transportation context.
(1) Jurisdictional Questions
315
CCD argued that VIA had improperly raised jurisdictional issues before
this Court, because the Federal Court of Appeal found that the Agency did have
jurisdiction, and VIA failed to cross-appeal. Rule 29(3) of the Rules of
the Supreme Court of Canada, SOR/2002-156,
provides that a respondent who seeks to uphold the judgment appealed from on a
ground not relied on in the reasons for that judgment, may do so in its factum
without applying for leave to cross-appeal. Citing Shell Canada Ltd. v.
Canada, [1999] 3 S.C.R. 622, CCD argued that Rule 29(3) did not apply in
this case because VIA, in its jurisdictional argument, was not simply asking
the Court to uphold the Federal Court of Appeal’s judgment which remitted the
matter to the Agency for redetermination. Rather, VIA was asking this Court to
order that the CCD application be definitely dismissed. We do not find it
necessary to decide on the application of Rule 29(3) because we find that the
Agency did not exceed its jurisdiction.
(a) Must an Applicant Have Actually
Encountered an Undue Obstacle?
316
There has been much debate in these proceedings over whether the Agency
has jurisdiction where an applicant has not “actually encountered” an alleged
undue obstacle.
317
The language of s. 172(1) of the Act indicates that Parliament intended
the Agency to have jurisdiction where an “application” is made to it, and its
inquiry is to be directed to “determine whether there is an undue
obstacle”. There is nothing to prevent the Agency from initiating an inquiry
based on an application from a public interest group such as CCD and no
indication that an applicant need have actually encountered an obstacle, as
long as the alleged obstacle exists. In this case the Renaissance rail cars
had already been acquired by VIA and the inquiry into alleged obstacles in
those cars was not beyond the jurisdiction of the Agency.
(b) Does the Agency Lose Jurisdiction When
Its Inquiry Extends Past the 120-Day Deadline in Section 29 of the Act ?
318
The breadth of the Agency’s inquiry in this case was exceptionally
broad. Sexton J.A. noted that the language of s. 172 gives the Agency
authority to inquire into a matter in relation to which a regulation could be made
under s. 170(1) , which includes the design, construction and modification of
rail cars. The question is whether the type of inquiry required in this case
fits within the Agency’s jurisdiction under s. 172 .
319
Under s. 29 of the Act , adjudicative decisions are to be made “as
expeditiously as possible” and within 120 days unless the parties consent to an
extension. Therefore, VIA argued that the Agency was without jurisdiction
under s. 172 to embark upon a lengthy inquiry such as this.
320
Given the requirement in s. 29(1) to make adjudicative rulings within
120 days, Parliament appears to have intended that adjudicative proceedings be
more limited than when the Agency engages in a general regulatory function
under s. 170. Nonetheless, there is no express limitation on the scope or
nature of an adjudicative inquiry.
321
In Canadian National Railway Co. v. Ferroequus Railway Co.,
[2002] F.C.J. No. 762 (QL), 2002 FCA 193, Décary J.A. found that the 120-day
deadline in s. 29(1) was directory and not mandatory. We adopt his reasoning
and agree that s. 29(1) is directory when applied to proceedings under s. 172
of the Act . Where a relatively limited adjudicative investigation is being
conducted by the Agency, the Agency will gear its process towards rendering a
decision within 120 days. On the other hand, where an adjudicative proceeding
is broad in scope and has far-reaching implications, the Agency will have to
adjust its process to take account of these conditions. The 120-day period in
s. 29 does not preclude it from doing so or cause the Agency to lose
jurisdiction if the 120-day period is exceeded. Although the inquiry in this
case was extensive, it was not beyond the jurisdiction of the Agency under s.
172 .
(c) Regulatory Burden
322
VIA argues that the “onerous regulatory burden” imposed upon it in this
case demonstrates that the Agency’s adjudicative jurisdiction under s. 172 was
not intended to apply where the impacts on a carrier would be broad and
far-reaching. Rather, when such impacts are involved, it is the Agency’s
regulatory power under s. 170 that is applicable.
323
The Agency’s exercise of its regulatory power is subject to more
stringent oversight than that of its adjudicative power. Under s. 36 of the
Act , Governor in Council’s oversight of regulations made by the Agency under s.
170 is mandatory. By contrast, under s. 40 of the Act , the Governor in Council
may on petition or of its own motion vary or rescind any decision or order made
by the Agency under s. 172 . Here the oversight by the Governor in Council is
discretionary. The rationale for mandatory oversight of regulations developed
by the Agency under s. 170 would appear to be that regulations are legislative
in nature and of general application. Adjudicative decisions of the Agency,
including those under s. 172 , will depend on the circumstances of a specific
case.
324
We are mindful that the National Transportation Policy is to minimize
the economic regulation of transportation undertakings. Nevertheless, the text
of the Act governs and, in the case of Part V, the Agency is given broad and
pervasive jurisdiction. It may not have been Parliament’s expectation that
broad inquiries would be conducted under s. 172 , but the words used do not
preclude such adjudications. There are no words that suggest that
adjudications, once they reach a certain magnitude, are beyond the Agency’s
jurisdiction under s. 172 , even though they impose a significant burden on the
carrier.
(d) Can the Agency Conduct a Review and
Overhaul of a Carrier’s Entire Infrastructure and System of Services?
325
VIA also argues that the Agency’s adjudicative jurisdiction under s. 172
cannot extend to a review and overhaul of a carrier’s entire infrastructure and
system of services. We would agree, but that is not what happened here. CCD’s
request to the Agency that it enjoin VIA from acquiring the Renaissance cars
had been dismissed at an early stage. The decision to acquire the Renaissance
cars, no matter their advantages or disadvantages, is not under review.
Moreover, unfocussed applications under s. 172 cannot be entertained. However,
the CCD application here, while it was certainly broad, alleged specific obstacles
in the Renaissance cars. Section 172 is engaged once an application alleging
specific and existing undue obstacles is filed with the Agency.
(e) Other Jurisdictional Arguments
326
In arguing that the Agency exceeded its jurisdiction, VIA made some
arguments which we find are more properly considered as questions of law. For
example, in its jurisdictional argument, VIA alleged that the Agency elevated
the Rail Code’s voluntary terms to de facto mandatory statutory
requirements. In doing so, VIA maintained that the Agency improperly evaded
Cabinet approval of the Agency’s regulation-making power. We find that the
issue of the Agency’s use of the Rail Code is not a jurisdictional issue but
rather a legal question. Similarly, VIA argued that the Agency was without
jurisdiction because it had found obstacles to be undue without knowing the
cost of remedying the obstacles (cost being an element of undueness). The
Agency’s consideration of economic constraints goes to whether the Agency
adhered to the applicable human rights principles in the transportation
context. These questions will be dealt with as questions of law.
(2) Review of the Agency’s Determination of
the Human Rights Principles Applicable in the Federal Transportation Context
327
The outcome of the appeal turns on whether the Agency erred in law with
respect to the test for determining the undueness of an obstacle. As mentioned
earlier, the question at issue comes for the first time before this Court and
consequently, the proper test has not yet been settled. We find that the
Agency erred in law. It did not determine the correct principles and did not
take into account the relevant considerations on material elements of the analysis.
328
The Agency recognized that it is subject to the Charter
(Preliminary Decision, at p. 16). It specifically mentioned that it is
directed to apply economic and commercial principles in the execution of its
mandate and, particularly, that the notion of practicability has to be taken
into account when considering whether the needs of persons with disabilities
have been accommodated. Despite its elaboration of some of the principles in
the abstract, the analysis conducted by the Agency reveals that most of the
applicable principles were excluded from its reasoning.
329
The fact that the allegations in this case did not rest on obstacles
actually encountered by persons with disabilities, and that the alleged
obstacles were numerous, made the factual inquiry highly complex. The Agency
elected to use predetermined fixed criteria when determining the existence of
obstacles. For example, the Agency stated the criterion for accessibility of
persons with disabilities was that an on-board wheelchair (as opposed to the
individual’s own wheelchair) “should only be provided as an option to those who
can and wish to use it” (Preliminary Decision, at p. 19). Even if the use of
predetermined fixed criteria was initially acceptable, the Agency should have
been careful to leave itself room to re-evaluate the criteria in its undueness
analysis to ensure that these predetermined measurements did not overtake the
broader contextual inquiry that is required. Instead, at this latter stage,
the Agency adhered to the predetermined fixed criteria that it had initially
established.
(a) Prima Facie Obstacle
330
The Agency appears to have taken a broad view of the term “obstacle”.
This view is consistent with the generous approach to be taken at the initial
stage of a human rights application. However, as discussed in the section
concerning the determination of the applicable principles, an alleged obstacle
of insufficient significance will not be considered an obstacle. Although the
Agency did not formally use the expression “sufficient significance”, it
appears to have applied such a nuanced standard in some instances. Five of the
obstacles alleged by CCD were found not to be obstacles warranting
consideration at the undueness stage. Since the correctness of the legal
standard is at issue rather than the factual determination, it is not our
intention to examine the findings of the Agency on individual alleged
obstacles.
331
The undueness analysis is the stage where the problems arose in this
case and it is not necessary to dwell further on the obstacle analysis.
(b) Undueness Analysis
332
Although the Agency’s view of the undueness analysis captures some of
the elements of the Meiorin framework, it overlooks material segments,
namely the identification of the objective, the rational connection between the
obstacle and the objective, the honest and good faith belief of the carrier,
the assessment of reasonable alternatives and, finally, the balancing of the
significance of the obstacle with the economic impact of the corrective
measures, having regard to the objective pursued by the carrier.
333
In order to explain the errors, we review the Agency’s decision against
the applicable principles.
(i) First Stage: Identifying the Legitimate
Objective and the Rational Connection
334
At the first stage of the analysis, the Agency must assess whether the
obstacle is related to a legitimate purpose.
335
What the Agency had to determine in this case is the goal that VIA was
pursuing and whether its resistance to improving the accessibility of the
Renaissance cars to persons with disabilities was rationally connected to its
objective.
336
The Agency explicitly noted VIA’s position that (1) it required “the
Renaissance Cars to augment its existing rolling stock and to meet its
obligations to provide an efficient, viable and effective passenger rail
network”; and (2) that “the Renaissance Cars were within the capital budget . .
. only because they were so advantageously purchased and retrofitted. VIA did not
have sufficient money to meet its needs for 124 new cars from conventional
purchases in North America” (Preliminary Decision, at p. 32).
337
VIA led evidence that it would have taken four years and some $400
million to acquire newly designed cars. The subsidy allocated for purchase of
the rail cars was only $130 million. The Standing Committee report that VIA’s
network needed to be improved at the same time as it was found that VIA lost
money “every time a train leaves the station” (p. 4) was evidence of the goals
VIA was pursuing in purchasing the Renaissance cars. Efficiency and economic
viability are objectives of the National Transportation Policy under s. 5 of
the Act and must be considered to be legitimate. Operating within the subsidy
allocated to VIA by the Government is consistent with those objectives.
Nonetheless, the Agency does not acknowledge that it was required to identify
the goals pursued by VIA in purchasing the cars; nor did it make a finding of
whether it accepted VIA’s argument and evidence that the acquisition of the
cars was rationally connected to a legitimate purpose.
338
The majority of our colleagues do not engage in an analysis of whether
the Agency considered VIA’s purpose. In our view, this sidestepping of an important
aspect of the Meiorin approach can have a broad impact in other human
rights cases. The stage of the identification of legitimate purposes and
whether the continued existence of obstacles is rationally connected to that
purpose may appear perfunctory. However, it remains an indispensable stage of
the undueness analysis. Only when the goals are clarified is it possible to
assess the rational connection and, at later stages of the analysis, to
evaluate the carrier’s good faith belief and to conduct the appropriate
balancing exercise. The goals pursued by VIA were the source from which the
rest of the undueness analysis flowed. The Agency’s error of law began at the
first stage of the undueness analysis.
(ii) Second Stage: Honest and Good Faith
Belief of Carrier
339
The Agency, not having identified the goals pursued by VIA did not
examine whether VIA, acted in good faith in doing so. It is not for this Court
to conduct an evaluation of the evidence. However, here again, it is worth
noting that there was evidence on the subject of good faith belief.
340
For example, VIA appears to have made a presentation to the Agency of an
overview of its business and strategic case for the cars preceding their
physical inspection on September 20, 2001. Further, as referred to above, VIA
submitted evidence of its Accessibility Program and the steps it was taking to
eliminate certain obstacles. The Agency, not having identified the good faith
belief element of the undueness analysis, did not assess this evidence. The
error of law of the Agency at the first stage of the undueness analysis was
compounded at the second stage when it failed to identify and assess the
motives pursued by VIA.
(iii) Third Stage: Reasonably Necessary to Accomplish
Purpose
341
At the third stage, the Agency was required to consider whether the
failure to eliminate obstacles was reasonably necessary in view of legitimate
objectives being pursued by VIA. This entailed an analysis of reasonable
alternatives and, if necessary, of constraints to eliminating the alleged undue
obstacles.
1. Reasonable Alternatives
342
The Agency made an important statement in outlining the relevant
principles of accessibility:
Insofar as transportation service providers are aware of the needs of
persons with disabilities and are prepared to accommodate those needs, it can
be said that persons with disabilities may have equivalent access to the
network. Implicit in the use of the term “equivalent access” is the notion that,
in order to provide equal access to persons with disabilities, transportation
service providers may have to provide different access — more or different
services, different facilities or features, all designed to meet the needs of
persons with disabilities to ensure that they, too, can access the network.
(Preliminary Decision, at p. 19)
343
This extract points, albeit with a different terminology, to reasonable
alternatives. However, when it came to evaluate the alternatives, the Agency
failed to address how alleged undue obstacles might be circumvented by network
alternatives which could accommodate persons with disabilities. The Agency
focussed only on a centimeter-by-centimeter approach to measuring physical
dimensions of the Renaissance cars, without regard to the possibility of
accommodation through alternative services.
344
In fact, the Agency, after having, in effect, said reasonable
alternatives were relevant, eventually completely dismissed the network as part
of the analysis. It focussed only on the Renaissance cars themselves. The
basis of the Agency’s rejection of the network argument was the requirement
that the Renaissance cars be accessible for persons using a personal wheelchair
as provided for in the Rail Code. Therefore, it is necessary to examine the
Agency’s use of the Rail Code in this matter.
345
No regulations have been promulgated under s. 170 of the Act to govern
the design, construction or modification of rail cars with respect to their
accessibility for persons with disabilities. Rather than legally binding
regulations, a policy choice has been made to encourage carriers to enhance
accessibility to persons with disabilities within the federal transportation
network through voluntary codes of practice such as the Rail Code. In its
factum, the Agency states at para. 6:
Following a change in government policy to deregulation in the
mid-1990’s, all further regulatory work has been achieved by means of voluntary
consensual codes of practice and currently there are four codes of practice in
effect [for aircraft, rail, ferries, and for removing communications barriers
for all federal modes of transportation].
346
The Rail Code and other voluntary codes of practice cannot be elevated
to the status of laws as if they were legally binding regulations. To do so is
to improperly circumvent the policy choice of favouring adjudication over
regulation; the Agency has been conferred the power to adjudicate and charged
with the duty to exercise its discretion in assessing whether a given obstacle
is undue. Applying the Rail Code as a binding instrument also sidesteps the
requirement in s. 36 of the Act that the Minister of Transport be given notice
of regulations, which the Governor in Council must then approve or reject.
347
As Doherty J.A. of the Ontario Court of Appeal held in Ainsley
Financial Corp. v. Ontario Securities Commission (1994), 21 O.R. (3d) 104,
at p. 109, a case dealing with a policy directive issued by the Ontario
Securities Commission:
Having recognized the Commission’s authority to use
non-statutory instruments to fulfil its mandate, the limits on the use of those
instruments must also be acknowledged. A non-statutory instrument can have no
effect in the face of [a] contradictory statutory provision or regulation: Capital
Cities Communications Inc., supra, at p. 629; H. Janisch,
“Reregulating the Regulator: Administrative Structure of Securities Commissions
and Ministerial Responsibility” in Special Lectures of the Law Society of
Upper Canada: Securities Law in the Modern Financial Marketplace (1989), at
p. 107. Nor can a non-statutory instrument pre-empt the exercise of a
regulator’s discretion in a particular case: Hopedale Developments Ltd.,
supra, at p. 263. Most importantly, for present purposes, a
non-statutory instrument cannot impose mandatory requirements enforceable by
sanction; that is, the regulator cannot issue de facto laws disguised
as guidelines. Iacobucci J. put it this way in Pezim at p. 596:
However, it is important to note that the Commission’s policy-making
role is limited. By that I mean that their policies cannot be elevated to
the status of law; they are not to be treated as legal pronouncements absent
legal authority mandating such treatment. [Emphasis added.]
348
Upon reading the Agency’s decisions in this case, despite its statement
mentioning the Rail Code’s voluntary nature, it appears that the Agency
effectively applied the Rail Code as if it were a regulation establishing
minimum standards to be met by a rail carrier for the accessibility of rail
cars to persons with disabilities. The Rail Code was the basis for the Agency
assessing the accessibility of the Renaissance cars using the standard of the
“Personal Wheelchair” as defined in the Rail Code. In its Preliminary
Decision, the Agency stated:
In this regard, it should be noted that the Rail Code sets out minimum
standards that the Agency expects rail carriers to meet.
.
. .
In fact, the Rail Code is the result of a consensus-building exercise,
between the community of persons with disabilities and industry, and
represents, in many ways, compromises to which rail carriers are expected to
adhere.
.
. .
In summary, the Rail Code was not developed in isolation by the Agency;
rather, it was the product of consultations with both the rail industry and the
community of persons with disabilities. As such, although the Rail Code is
voluntary, it is an important reference tool which sets out clearly defined
expectations regarding accessibility standards to be met by rail carriers such
as VIA.
. . .
In light of the above, the Agency is of the opinion that the
appropriate standard to be applied in its determination of whether certain
features of the Renaissance Cars present undue obstacles to the mobility of
persons using wheelchairs, is the Personal Wheelchair as set out in the Rail
Code.
.
. .
Rather, as set out in the “Framework of the Decision” section of this
Decision, the Rail Code is a voluntary guideline on minimum accessibility
standard developed by consensus by industry and the community of persons
with disabilities. In recognition of this, the Agency is not precluded from
finding undue obstacles in the Renaissance Cars even if it finds apparent
compliance with the Code. [Emphasis added; pp. 20, 21, 23, 27 and 31.]
It is apparent
that the Agency’s approach was that the Rail Code set minimum standards but did
not preclude it from finding an obstacle to be undue even if the minimum
standards of the Rail Code had been met. In other words, the Agency was of the
view that it could impose a standard more demanding than the Rail Code but not
less demanding.
349
While some Renaissance cars were not complete or were being retrofitted
by VIA, the fact is that they were not ordered from the manufacturer according
to specifications established by VIA. Nonetheless, the Agency, applying the
Rail Code formula, determined that they were “newly manufactured and, as such,
the Rail Code accessibility standards applicable are those for newly
manufactured cars” (Preliminary Decision, at p. 31).
350
We have no doubt of the desirability of rail cars meeting or exceeding
the Rail Code standards. However, in the absence of regulations enacted
pursuant to s. 170 , the Agency cannot treat the Personal Wheelchair as a
legally binding standard, because to do so results in a failure by the Agency
to exercise the discretion vested in it when it adjudicates under s. 172 of the
Act .
351
It is apparent that the Agency did not consider alternatives that did
not meet the Personal Wheelchair accessibility standards of the Rail Code. The
Agency’s show cause order in its Preliminary Decision confirms that this was
the Agency’s approach. Every item on the show cause order pertained to
modifying the Renaissance rail cars to meet the Rail Code and Personal
Wheelchair standard. While the order contained a basket clause inviting VIA to
make any other submissions it considered relevant, the Agency’s exclusive focus
on modifying the rail cars in accordance with these requirements implied that
other submissions were not invited or would not be entertained. It effectively
adopted the Rail Code and Personal Wheelchair accessibility standard as if they
were regulatory requirements. In doing so, the Agency failed to consider the
full range of reasonable alternatives offered through the network to address
the obstacles identified in the Renaissance cars and thereby erred in law.
2. Constraints
352
At this stage, the Agency’s analysis involved a balancing of the
significance of the obstacles to the mobility of persons with disabilities
against other constraints such as structural constraints and the total
estimated cost to remedy the obstacles, having regard to the objective of
economic viability.
353
With respect to structural constraints, the Agency appears not to have
been satisfied with evidence advanced by VIA as to practical structural
problems. However, the third-party Schrum report filed as evidence in the
Federal Court of Appeal found that “[t]he re-construction of the cars, as
directed by the Agency, make[s] no engineering or production sense.”
Furthermore, Mr. Schrum stated, “. . . I am of the view that some of the
changes may not be feasible from an engineering point of view”. On the issue of
structural constraints, we can say no more than that the onus is on VIA to
produce relevant evidence and that the Agency must carefully evaluate that
evidence.
354
Economic constraints were a significant issue before the Agency. The
Agency did make certain cost findings with respect to some of the obstacles.
However, its reasoning reveals a dismissive way of addressing the cost issue.
Furthermore, the Agency did not identify its total cost estimate. In an
undueness analysis, when cost constraints are an issue, it is an error of law
for the Agency not to determine a total cost estimate for the corrective
measures it orders.
355
In response to the Agency’s show cause order in its Preliminary
Decision, VIA had provided an estimate of some $35 million as the total cost
and lost revenue of completing the corrective measures identified in the show
cause order. The Agency found this to be overstated. In particular, it did
not accept VIA’s estimate of $24.2 million in foregone passenger revenue as a
result of removing some seats to accommodate persons with disabilities. The
Agency calculated its own range for this lost revenue, finding a best case
scenario of approximately $700,000 and a worst case scenario of some $1.7
million. The Agency also rejected VIA’s estimate of the cost of implementing
certain corrective measures finding, for example, that such cost would be
incurred by VIA in making required safety changes in any event. However,
despite a number of figures and calculations by the Agency in respect of
certain corrective measures, the Agency never provided its best estimate of
VIA’s total cost of the corrective measures it was ordering. Without a total
cost estimate, the Agency could not conduct the undueness analysis required by
s. 172 , that is, balancing the significance of the obstacles to persons with
disabilities with the cost of the corrective measures, having regard to the
objective of economic viability.
356
The Agency was also dismissive in its consideration of VIA’s ability to
fund the corrective measures. For example, the Agency did not consider the
removal of some obstacles and the retention of others based on cost
considerations. It treated VIA’s resources as virtually unlimited, stating
that costs for accessibility “should always be budgeted for” (Preliminary
Decision, at p. 45). The Agency noted that “VIA receives significant funding
from the Government of Canada” (p. 46) as if VIA was entitled to such funding
as a matter of right. The Agency also disregarded funding limitations when it
stated that the “fundamental importance of accessible travel by rail to persons
with disabilities cannot be set aside” in favour of reduced capital costs and
flexibility in VIA’s network (p. 46).
357
The Agency made reference to a contingency fund for the 2003-2007 period
of some $25 million for “unplanned events such as market downturns, potential
accidents and other operational liabilities” (Final Decision, at p. 23).
However, there is no indication that the fund is available for major
reconstruction of the Renaissance cars and, in any event, without providing a
cost estimate, the reference to the contingency fund is premature.
358
Under s. 172 the Agency has the power to order a carrier to take
corrective measures in respect of an undue obstacle to the mobility of persons
with disabilities. In cases in which the required funding may be significant,
and, as in VIA’s case, where the carrier operates on an annual deficit such
that it is reliant on government subsidization for its ongoing operations and
capital requirements, the Agency must be especially attentive to the cost it
proposes to impose.
359
The Agency’s reasons do not demonstrate the attention that is required
for a case where the cost of the measures is potentially very substantial. For
example, the Agency made a questionable comparison in its Preliminary Decision
(p. 46) when it compared remedying obstacles to the mobility of persons with disabilities
with station upgrades and retrofitting the lounge in the Renaissance cars. The
Agency stated that each of these expenditures “will have the effect of
increasing the company’s operating loss”, apparently missing the fact that
station and lounge upgrades are made for economic objectives, intended to yield
increased revenues over time (p. 46).
360
In justifying its order that VIA remove seats for accessibility
purposes, the Agency compared this to VIA’s removal of seats to provide space
for coat storage:
. . . if VIA is prepared to remove up to 47 seats to accommodate
passengers’ coats and forego the revenues associated with this, it must be
prepared to forego the revenues associated with removing up to 33 seats . . .
in order to implement Option 3.
(Final Decision, at p. 53)
Again this was
a flawed comparison. Providing space for coat storage is obviously not an
objective of its own. It is an economic decision to maximize revenue. The
revenue connected with the seats removed to create a coat valet will be
foregone, but VIA must have determined that coat storage facilities were
necessary in order to attract and retain passengers and maximize revenue from
its remaining seats. Thus it does not follow, as the Agency concluded, that:
. . . it would appear that VIA can afford to lose the revenue
associated with one passenger seat for the above-noted 13 or 33 economy coach
cars, given that it is prepared to forego the revenue in respect of up to 47
coach car seats to provide coat storage.
(Final Decision, at p. 53)
361
The Agency’s flawed reasoning on this point may have owed something to
its process. On September 17, 2003, the Agency wrote to VIA directing that VIA
advise whether any passenger seats had been removed from the Renaissance cars,
thereby causing an impact on VIA’s passenger seat revenue. VIA responded in
writing the following day, explaining that it had removed seats to install coat
valets, a change that was necessary because there was no other facility
appropriate for the storage of coats. VIA noted that the Agency had given VIA
less than 26 hours to file its reply to the Agency’s question and that “VIA
Rail does not understand the context of the question”. In its Final Decision
the Agency used the information to make the coat storage comparison. Furthermore,
the Agency stated that VIA did not indicate “why the existing storage or even
some of the ‘future valet/storage’ is not sufficient for this purpose”
(p. 53). But the Agency had not afforded VIA an opportunity to explain.
362
Once the Agency ordered corrective measures in its Final Decision, VIA
says it was able to obtain a third-party estimate of the cost associated with
these modifications. VIA claims that obtaining a third-party cost estimate was
more feasible at this point because it pertained to a specific order of the
Agency, rather than to an unlimited series of alternatives. Even though the
order had narrowed the scope of the estimate, Bombardier train expert Peter
Schrum stated that the directions of the Agency were laden with a number of
complex and unknown structural, engineering, production and timing risks, such
that his cost conclusions must be qualified.
363
The Federal Court of Appeal allowed the Schrum evidence to be added to
the record. His report indicated that the modifications ordered by the Agency
would cost some $48 million and possibly up to $92 million. This represented
between 37 percent and 71 percent of the cost of purchasing and commissioning
into service the Renaissance rail cars.
364
In its reasons, the majority implies the Schrum report should not have
been admitted in evidence in the Federal Court of Appeal. However, the
admission of this evidence is not an issue before this Court. This Court
should not, on its own motion, disregard filed evidence in the absence of
argument by the parties on the issue. Both parties filed extensive evidence
and conducted cross-examinations on affidavits. In the end, over 2000 pages of
evidence were filed in the Federal Court of Appeal. This is part of the record
before this Court and cannot be ignored.
365
The majority questions the validity of the Schrum report and says that
its “untested conclusions render it an inappropriate basis for interfering with
the Agency’s factual findings and remedial responses” (majority reasons, at
para. 242). It is not for this Court to assess and weigh the evidence. In any
event, Mr. Schrum was cross-examined on his affidavit. Therefore, his report
did not go untested. Moreover, the Federal Court of Appeal used the Schrum
evidence not to make a decision with respect to the merits, but only as a basis
for remitting the matter to the Agency for its reconsideration. In the
circumstances, that was the correct approach. Where the cost is potentially
significant and where the Agency adopted a dismissive approach to cost and
funding of corrective measures, it is apparent that relevant considerations
were not taken into account.
366
It should be for the Agency, on the basis of new evidence adduced before
it (or if it considers it adequate, the evidence filed in the Federal Court of
Appeal) to determine the cost of the corrective measures and VIA’s ability to
fund them and to carry out the balancing exercise required of it at the third
stage of the undueness analysis.
367
In the name of deference, the majority would cut short the assessment of
the Agency’s decisions on the basis that it applied the Meiorin
principles. This is problematic for two reasons. First, the Agency distanced
itself from these human rights principles (Preliminary Decision, at p. 36). It
takes an overly generous recrafting of the Agency’s decision to characterize it
as reflecting the correct approach. Second, the majority is not clear as to
how the Meiorin principles are to be applied and to what extent. Tests
and frameworks are created to provide guidance to decision makers in the
exercise of their discretion. Making them ambiguous is counterproductive.
V. Conclusion
368
On the one hand, Parliament’s intention is to deregulate, to the extent
possible, transportation subject to federal jurisdiction. That is the
environment in which VIA may expect to operate. On the other, the Agency has
been given broad powers in Part V of the Act in respect of human rights
matters. In this context, the Agency’s role as an adjudicative body
necessarily requires it to place procedural obligations on the parties
participating in proceedings. The Agency must be attuned to the feasibility of
the orders it issues to the parties and the intrusiveness of its process into
the management of the carrier. In turn, the parties must respect the Agency’s
role and conduct themselves accordingly. We observe from a review of the
record that VIA’s conduct during the proceedings did not always appear to be
productive. Notwithstanding the fact that a s. 172 application creates an
adversarial process in which VIA, as any regulated enterprise, is entitled to
vigorously defend its interests, VIA must recognize and respect the role of the
Agency.
369
With respect to costs, CCD is a non‑profit organization that does
not seek a pecuniary or proprietary benefit, and its application has raised
important issues with a human rights dimension. VIA does not seek costs against
CCD.
370
For these reasons, we would dismiss this appeal without costs. The
decision of the majority of the Federal Court of Appeal should be affirmed, and
the matter remitted to the Agency for redetermination having regard to these
reasons.
APPENDIX
Canada
Transportation Act, S.C. 1996, c. 10
national transportation policy
5. [Declaration] It is hereby declared that
a safe, economic, efficient and adequate network of viable and effective
transportation services accessible to persons with disabilities and that makes
the best use of all available modes of transportation at the lowest total cost
is essential to serve the transportation needs of shippers and travellers,
including persons with disabilities, and to maintain the economic well‑being
and growth of Canada and its regions and that those objectives are most likely
to be achieved when all carriers are able to compete, both within and among the
various modes of transportation, under conditions ensuring that, having due
regard to national policy, to the advantages of harmonized federal and
provincial regulatory approaches and to legal and constitutional requirements,
(a) the national transportation system meets the highest
practicable safety standards,
(b) competition and market forces are, whenever possible,
the prime agents in providing viable and effective transportation services,
(c) economic regulation of carriers and modes of
transportation occurs only in respect of those services and regions where
regulation is necessary to serve the transportation needs of shippers and
travellers and that such regulation will not unfairly limit the ability of any
carrier or mode of transportation to compete freely with any other carrier or
mode of transportation,
(d) transportation is recognized as a key to regional economic
development and that commercial viability of transportation links is balanced
with regional economic development objectives so that the potential economic
strengths of each region may be realized,
(e) each carrier or mode of transportation, as far as is
practicable, bears a fair proportion of the real costs of the resources,
facilities and services provided to that carrier or mode of transportation at
public expense,
(f) each carrier or mode of transportation, as far as is
practicable, receives fair and reasonable compensation for the resources,
facilities and services that it is required to provide as an imposed public
duty,
(g) each carrier or mode of transportation, as far as is
practicable, carries traffic to or from any point in Canada under fares, rates
and conditions that do not constitute
(i) an unfair disadvantage in respect of any such traffic beyond
the disadvantage inherent in the location or volume of the traffic, the scale
of operation connected with the traffic or the type of traffic or service
involved,
(ii) an undue obstacle to the mobility of persons, including
persons with disabilities,
(iii) an undue obstacle to the interchange of commodities between
points in Canada, or
(iv) an unreasonable discouragement to the development of primary or
secondary industries, to export trade in or from any region of Canada or to the
movement of commodities through Canadian ports, and
(h) each mode of transportation is economically viable,
and this Act is enacted in accordance with and for the attainment of
those objectives to the extent that they fall within the purview of subject‑matters
under the legislative authority of Parliament relating to transportation.
.
. .
20. [Technical experts] The Agency may
appoint and, subject to any applicable Treasury Board directive, fix the
remuneration of experts or persons who have technical or special knowledge to
assist the Agency in an advisory capacity in respect of any matter before the
Agency.
.
. .
25. [Agency powers in general] The Agency
has, with respect to all matters necessary or proper for the exercise of its
jurisdiction, the attendance and examination of witnesses, the production and
inspection of documents, the enforcement of its orders or regulations and the
entry on and inspection of property, all the powers, rights and privileges that
are vested in a superior court.
.
. .
29. [Time for making decisions] (1) The
Agency shall make its decision in any proceedings before it as expeditiously as
possible, but no later than one hundred and twenty days after the originating
documents are received, unless the parties agree to an extension or this Act or
a regulation made under subsection (2) provides otherwise.
(2) [Period for specified classes] The Governor
in Council may, by regulation, prescribe periods of less than one hundred and
twenty days within which the Agency shall make its decision in respect of such
classes of proceedings as are specified in the regulation.
.
. .
31. [Fact finding is conclusive] The finding
or determination of the Agency on a question of fact within its jurisdiction is
binding and conclusive.
.
. .
33. [Enforcement of decision or order] (1) A
decision or order of the Agency may be made an order of the Federal Court or of
any superior court and is enforceable in the same manner as such an order.
.
. .
36. [Approval of regulations required] (1)
Every regulation made by the Agency under this Act must be made with the
approval of the Governor in Council.
(2) [Advance notice of regulations] The Agency
shall give the Minister notice of every regulation proposed to be made by the
Agency under this Act .
.
. .
Review
and Appeal
40. [Governor in Council may vary or rescind
orders, etc.] The Governor in Council may, at any time, in the discretion of
the Governor in Council, either on petition of a party or an interested person
or of the Governor in Council’s own motion, vary or rescind any decision,
order, rule or regulation of the Agency, whether the decision or order is made inter
partes or otherwise, and whether the rule or regulation is general or
limited in its scope and application, and any order that the Governor in
Council may make to do so is binding on the Agency and on all parties.
41. (1) [Appeal from Agency] An appeal lies
from the Agency to the Federal Court of Appeal on a question of law or a
question of jurisdiction on leave to appeal being obtained from that Court on
application made within one month after the date of the decision, order, rule
or regulation being appealed from, or within any further time that a judge of
that Court under special circumstances allows, and on notice to the parties and
the Agency, and on hearing those of them that appear and desire to be heard.
.
. .
part v
transportation of persons with disabilities
170. (1) [Regulations] The Agency may make
regulations for the purpose of eliminating undue obstacles in the
transportation network under the legislative authority of Parliament to the
mobility of persons with disabilities, including regulations respecting
(a) 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;
(b) the training of personnel employed at or in those facilities
or premises or by carriers;
(c) tariffs, rates, fares, charges and terms and conditions of
carriage applicable in respect of the transportation of persons with
disabilities or incidental services; and
(d) the communication of information to persons with disabilities.
.
. .
171. [Coordination] The Agency and the
Canadian Human Rights Commission shall coordinate their activities in relation
to the transportation of persons with disabilities in order to foster
complementary policies and practices and to avoid jurisdictional conflicts.
172. (1) [Inquiry re obstacles to persons
with disabilities] 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 obstacle to the mobility of persons with
disabilities.
(2) [Compliance with regulations] Where the
Agency is satisfied that regulations made under subsection 170(1) that are
applicable in relation to a matter have been complied with or have not been
contravened, the Agency shall determine that there is no undue obstacle to the
mobility of persons with disabilities.
(3) [Remedies] On determining that there is an
undue obstacle to the mobility of persons with disabilities, the Agency may
require the taking of appropriate corrective measures or direct that
compensation be paid for any expense incurred by a person with a disability
arising out of the undue obstacle, or both.
Appeal allowed with costs, Binnie,
Deschamps, Fish and Rothstein JJ.
dissenting.
Solicitors for the appellant: Bakerlaw, Toronto.
Solicitors for the respondent: Fasken Martineau DuMoulin,
Toronto.
Solicitor for the intervener the Canadian Transportation
Agency: Canadian Transportation Agency, Gatineau.
Solicitor for the intervener the Canadian Human Rights
Commission: Canadian Human Rights Commission, Ottawa.
Solicitor for the intervener the Ontario Human Rights
Commission: Ontario Human Rights Commission, Toronto.
Solicitor for the intervener Commission des droits de la personne et
des droits de la jeunesse: Commission des droits de la personne et
des droits de la jeunesse, Montréal.
Solicitor for the interveners the Manitoba Human Rights Commission
and the Saskatchewan Human Rights Commission: Manitoba Human Rights
Commission, Winnipeg.
Solicitor for the interveners Transportation Action Now, the
Alliance for Equality of Blind Canadians, the Canadian Association for
Community Living and the Canadian Hard of Hearing Association: ARCH
Disability Law Centre, St-Jean-sur-Richelieu.
Solicitors for the intervener the Canadian Association of
Independent Living Centres: Shannon Law Office, Thunder Bay; Bérubé &
Pion, Toronto.
Solicitor for the intervener the DisAbled Women’s Network
Canada: Melina Buckley, Vancouver.
170. (1) The Agency may make regulations for the purpose of eliminating
undue obstacles in the transportation network under the legislative authority
of Parliament to the mobility of persons with disabilities, including
regulations respecting
(a) 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;
(b) the
training of personnel employed at or in those facilities or premises or by
carriers;
(c)
tariffs, rates, fares, charges and terms and conditions of carriage applicable
in respect of the transportation of persons with disabilities or incidental
services; and
(d) the
communication of information to persons with disabilities.