Date: 20060206
Docket: A-277-05
Citation: 2006 FCA 45
CORAM: DÉCARY J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
VIA RAIL CANADA INC.
Appellant
and
CANADIAN TRANSPORTATION AGENCY ET AL
Respondents
REASONS FOR JUDGMENT
DÉCARY J.A.
[1]. This Court granted VIA Rail Canada Ltd. (VIA Rail) leave to appeal from a decision (the decision) of the Canadian Transportation Agency (the Agency) dated November 3, 2005 (decision No.115-AT-R-2005) on the question of whether "[VIA Rail's] meal distribution policy constituted an undue obstacle to the mobility of the respondent".
[2]. The decision was rendered in response to a complaint filed under section 172 of the Canada Transportation Act, S.C. 1996, c.10 (the Act). The complainant, Ms. Meenu Sikand, raised a number of matters arising out of a round trip with VIA Rail between Toronto and Ottawa, alleging that she had encountered a number of 'undue obstacles" to her mobility. Ms. Sikand uses a personal electric wheelchair. In the decision, the Agency found that the following constituted undue obstacles to Ms. Sikand's mobility: (1) the unavailability of the wheelchair tie-down that had been reserved at the time of booking, (2) lack of access to a washroom on the first portion of her trip, and (3) VIA Rail's meal distribution policy on the return portion.
[3]. VIA Rail appeals only from the Agency's conclusion with respect to the third issue, that is, VIA Rail's meal distribution policy.
THE FACTS
[4]. The facts are not in dispute. VIA Rail offers a meal service only on its first class cars, referred to as "VIA-1". VIA Rail offers its VIA-1 passengers a choice of meals during their voyage. It can also accommodate the dietary restriction of its passengers when details of a passenger's food requirements are provided at the time of making a reservation.
[5]. For those passengers on VIA-1 who do not require special meals, VIA Rail generally provides three meal options. The precise quantity of each type of meal carried on each trip is determined by fixed mathematical ratios in response to historical customer preferences.
[6]. There are as many meals available as there are passengers. VIA Rail does not stock three meal options for each VIA-1 passenger. As passengers choose from among the available meal options in the process of meal distribution, passengers not yet served may have fewer meal options. On its menu and through on-board announcements, VIA Rail informs its passengers that they may not get the meal of their choice. The beverage service on VIA-1 cars commences at the end of the rail car opposite the end where the meal service begins. A 2004 survey revealed that 90% of customers were of the view that VIA Rail meets or exceeds expectations on meal service and customer relations.
[7]. The wheelchair tie-downs are available only on VIA-1 cars. The bulk of passengers travelling in wheelchairs pay coach fare. As a matter of policy, when a passenger who uses a wheelchair travels in first class but pays coach fare, her attendant travels free of charge and both receive a complimentary meal. The wheelchair tie-downs are located at the end of the train where the beverage service begins.
[8]. Ms. Sikand uses an electric wheelchair with prescribed, customised and moulded seating to support her back. Her travel agency made a reservation for her, her attendant and her two-and-a-half year son to travel in economy class from Toronto to Ottawa on December 2, 2003, with a return date of December 4, 2003, which included a request for her to occupy a wheelchair tie-down. On the return portion of her trip, Ms. Sikand occupied a wheelchair tie-down located in a VIA-1 car and was offered a free meal. As the meal distribution started at the end of the car opposite to the tie-down area, Ms. Sikand was not able to have the full menu from which to choose and had to be satisfied with the only meal option left in the menu. She then filed a complaint with the Agency.
[9]. At first, the Agency determined that the complaint was not related to accessibility concerns. The Agency eventually changed its view and decided to address the issue.
[10]. It is of interest to note that Ms. Sikand recognised in her evidence that if VIA Rail had informed her travel agency that the meals provided in VIA-1 cars to passengers paying coach fare are an additional benefit provided as a courtesy and that they are available only after other passengers have made their selection, she would not have raised this matter with the Agency.
THE IMPUGNED DECISION
[11]. The Agency found that the meal distribution policy was an "obstacle" to the mobility of persons with disabilities within the meaning of subsection 172(1) of the Act. The Agency disposed of this matter as follows:
[43] The word "obstacle" is not defined in the CTA. This implies that Parliament did not want to restrict the Agency's jurisdiction in view of its mandate to eliminate undue obstacles in the federal transportation network. Furthermore, the word "obstacle" lends itself to a broad meaning as it is usually understood to mean something that impedes progress or achievement.
[44] In determining whether or not a situation constituted an "obstacle" to the mobility of a person with a disability in a particular case, the Agency looks to the travel experience of that person as expressed in the application. There is a broad range of circumstances where the Agency has found obstacles in the past. For example, there are cases of obstacles where the person was prevented from travelling, where the person was injured in the course of his or her travels (such as where the lack of appropriate accommodation during travel affects the physical condition of the passenger), or where the person was deprived of his or her mobility aid after the trip as a result of damage caused to the aid while it was being transported. Also, the Agency has found obstacles in instances where the person was ultimately able to travel, but circumstances arising from the experience were such as to detract from the person's sense of confidence, dignity, safety, or security, recognizing that these feelings may be such as to disincline a person from future travel.
...
[53] The Agency is of the opinion that persons with disabilities have the same rights as others to full participation in all aspects of society and equal access to services is critical to the ability of persons with disabilities to exercise that right.
[54] While every passenger travelling in a VIA-1 car receives a meal, persons located at the tie-down end of the car are offered meal options last as VIA's meal distribution policy dictated that meal options be offered starting with the passengers at the opposite end of the car. Unlike other passengers who have access to multiple seating choices, which can result in them being seated in various locations throughout the VIA-1 car, passengers who need or choose to remain in their wheelchair will always be located in the tie-down area. As such, unlike other passengers, persons located in the tie-down area will always be the last passengers to be offered meal options, if they receive options at all.
[55] The Agency notes that as a result of VIA's meal distribution policy and because Ms. Sikand was seated in the tie-down are on Train No. 48 which is located at the opposite end of the car, Ms. Sikand was not provided a choice of meals.
[56] In light of the foregoing, the Agency finds that VIA's meal distribution policy constituted an obstacle to Ms. Sikand's mobility."
[12]. The Agency went on to conclude that the obstacle was undue. In view of the conclusion I have reached that the meal distribution policy does not constitute an "obstacle", I need not examine the Agency's decision with respect to "undueness".
[13]. Ms. Sikand did not participate in the appeal. The Agency, as authorized pursuant to subsection 41(4) of the Act, did participate.
[14]. This appeal appeared to be moot because, as noted by the Agency in its decision, subsequent to the filing of Ms. Sikand's application, VIA Rail amended its meal distribution policy so that all persons with disabilities will be able, during the reservation process, to select their meal of choice from an inventory of meals that will be available on the train on the day in question.
[15]. The issue remains alive, however, because VIA Rail holds the view that its meal distribution policy does not constitute an "obstacle", even less so an "undue obstacle", that it is simply a service issue and that it is as such beyond the reach of the Agency. As a result, its meal distribution policy should not be subject in the future to the scrutiny of the Agency. Counsel for the Agency conceded that the issue was not moot.
RELEVANT LEGISLATIVE PROVISIONS:
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PART V
TRANSPORTATION OF PERSONS WITH DISBILITIES
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 person with disabilities.
[...]
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 complimentary policies and practices and to avoid jurisdictional conflicts.
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) (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)
(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.
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PARTIE V
TRANSPORT DES PERSONNES AYANT UNE DÉFICIENCE
170. (1) L'Office peut prendre des règlements afin d'éliminer tous obstacles abusifs, dans le réseau de transport assujetti à la compétence législative du Parlement, aux possibilités de déplacement des personnes ayant une déficience et peut notamment, à cette occasion, régir :
a) la conception et la construction des moyens de transport ainsi que des installations et locaux connexes -- y compris les commodités et l'équipement qui s'y trouvent --, leur modification ou la signalisation dans ceux-ci ou leurs environs;
b) la formation du personnel des transporteurs ou de celui employé dans ces installations et locaux;
c) toute mesure concernant les tarifs, taux, prix, frais et autres conditions de transport applicables au transport et aux services connexes offerts aux personnes ayant une déficience;
d) la communication d'information à ces personnes.
[...]
171. L'Office et la Commission canadienne des droits de la personne sont tenus de veiller à la coordination de leur action en matière de transport des personnes ayant une déficience pour favoriser l'adoption de lignes de conduite complémentaires et éviter les conflits de compétence.
172. (1) Même en l'absence de disposition réglementaire applicable, l'Office peut, sur demande, enquêter sur toute question relative à l'un des domaines visés au paragraphe 170(1) pour déterminer s'il existe un obstacle abusif aux possibilités de déplacement des personnes ayant une déficience.
(2) L'Office rend une décision négative à l'issue de son enquête s'il est convaincu de la conformité du service du transporteur aux dispositions réglementaires applicables en l'occurrence.
(3) En cas de décision positive, l'Office peut exiger la prise de mesures correctives indiquées ou le versement d'une indemnité destinée à couvrir les frais supportés par une personne ayant une déficience en raison de l'obstacle en cause, ou les deux.
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THE STANDARD OF REVIEW
[16]. The factors to be considered in applying the pragmatic and functional approach mandated by Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at paragraph 25, are the (1) presence or absence of a privative clause or statutory right of appeal; (2) expertise of the tribunal; (3) purpose of the legislation and the provision; and (4) nature of the question.
[17]. The issue of whether a given policy constitutes an "obstacle" within the meaning of section 172 of the Act is different from that of whether an obstacle constitutes an "undue obstacle" under that section. With respect to the latter, this Court in VIA Rail Canada Inc. v. Canadian Transportation Agency, (the Renaissance Cars case) 2005 FCA 79 found that the patently unreasonableness standard was applicable. A fresh examination of the four Dr. Q. factors is therefore warranted.
[18]. The first factor - a statutory right of appeal - suggests a less deferential standard of review (see Renaissance Cars, at paragraph 23).
[19]. The second factor - relative expertise - also calls for lesser deference as the Agency has no more expertise than the courts in defining the word "obstacle" in section 172 of the Act (see Renaissance Cars, at paragraph 24).
[20]. The third factor - purpose of the legislation and provision - also points to a lower level of deference, as the provisions at issue are contained in a discrete part of the Act and have a human rights aspect to them. (see Renaissance Cars, at paragraph 25).
[21]. The fourth factor - nature of the question - also invites lesser deference. The question is not only one of statutory interpretation; it is also one which requires a comparison, under section 171 of the Act, of the respective jurisdiction of the Agency and of the Canadian Human Rights Commission in matters of human rights. Courts must ensure that one tribunal, in this case the Agency, does not by an incorrect interpretation of its enabling statute enlarge its jurisdiction at the expense of the agencies - the Canadian Human Rights Commission and the Canadian Human Rights Tribunal - which specialize in the protection of human rights.
[22]. Taken together, the factors point to a correctness standard with respect to the statutory meaning of the word "obstacle" (see also, McKay-Panos v. Air Canada et al., 2006 FCA 8).
"OBSTACLE"
[23]. Matters pertaining to section 172 complaints that have been decided by this Court dealt with features of the Renaissance cars that had to be re-designed or re-structured in order to allow access to persons in wheelchairs (Renaissance Cars) and with airplane seats that could not accommodate a person disabled by reason of her obesity (McKay-Panos). The question of whether a requirement in a tariff that attendants travelling with disabled persons be capable of assisting disabled persons to board or disembark a train, constitutes an "obstacle" was raised, but not decided, in Via Rail Canada Inc. v. National Transportation Agency (C.A.)., [2001] 2 F.C. 25 (Lemonde).
[24]. In the case at bar, the Agency found that the unavailability of a reserved wheelchair tie-down and the lack of access to the washroom on one of the trips were "obstacles". VIA Rail did not appeal these findings. The Agency also found that "various service issues, including the fish meal she was offered on the outbound portion of her trip, the non-availability of meals that had been requested for her attendant and her son, and the lack of seat for her son, "were not related to accessibility concerns and represented, rather, "customer service issues" that could affect any traveller".
[25]. The Agency is of the view that it can be inferred from the fact that the term "obstacle" has not been defined that Parliament did not want to restrict the Agency's jurisdiction and that the term lends itself to a broad meaning. I do not agree. The term "obstacle" has to be read in context. In its immediate legislative context, it is associated with "mobility" (in French, "possibilités de déplacement"). "Obstacle", "mobility", "déplacement", in their primary and ordinary meaning, refer to obstacles of a physical nature.
[26]. Relying on the Concise Oxford Dictionary of Current English, 7th ed, this Court, in Lemonde, at paragraph 29, has affirmed that the term "obstacle" is to be interpreted as a "thing that obstructs progress".
[27]. The following definitions may also be useful:
"obstacle" in English:
1. a situation, an event, etc. that makes it difficult for you to do or achieve something (syn. Hindrance)
2. an object that is in your way and makes it difficult for you to move forward.
(Oxford Advanced Learners Dictionary, 7th ed.)
1. A thing that blocks one's way or hinders progress.
(The Compact Oxford Dictionary, 3rd ed.)
1. Something that stands in the way or opposes: something that hinders progress: a physical or moral impediment or obstruction.
(Webster's Third New International Dictionary, 1986)
"obstacle" in French:
a. Ce qui arrête ou ralentit le mouvement, la progression, le passage de quelqu'un ou de quelque chose.
b. Au fig. Difficulté d'ordre matériel, moral ou intellectuel empêchant ou gênant la réalisation de quelque chose.
(Trésor de la langue française, 1986)
1. (Concret) Ce qui s'oppose au passage, gêne le mouvement
2. (Abstrait) Difficulté qui s'oppose à la pensée, à l'action, à l'obtention d'un résultat.
(Le Grand Robert de la langue française, 2e éd.)
"Mobility":
1. a. Ability to move or to be moved; capacity of change of place; movableness... Also, facility of movement
(The Oxford English Dictionary, 2nd ed.)
4. The ability to move or be moved freely or easily
(Canadian OxfordDictionary, 2nd ed.)
1. The quality or state of being mobile: the capacity of movement ...
(Webster's Third New International Dictionary, 1986)
"Déplacement":
A. 1. Changement de place.
2. Changement de résidence ou de poste.
3. Action d'aller d'un lieu à un autre.
B. Au fig. Changement de position ou de direction.
(Le Dictionnaire de L'Académie française, 8e éd.)
4. Action de se déplacer (en parlant de personne), d'aller d'un lieu à un autre.
(Le Grand Robert de la langue française, 2e éd.)
[28]. In its institutional context, the expression "obstacle to mobility" has to be understood in light of the respective jurisdiction of the Agency and of the Canadian Human Rights Commission (the Commission). Section 171 of the Act provides that the Agency and the Commission shall coordinate their activities in relation to the transportation of persons with disabilities in order to foster complementary policies and practices and avoid jurisdictional conflicts. Counsel for the Agency suggested that section 171 of the Act is an indication that Parliament intended the Agency to have a wide jurisdiction over human rights issues. Quite to the contrary, in my respectful view, section 171 of the Act is an indication that the Agency should not use its jurisdiction over matters pertaining to "accessibility" of persons with disabilities to encroach upon the Commission's general jurisdiction over matters pertaining to the human rights of persons with disabilities.
[29]. When it comes to dealing with human rights, the Canadian Human Rights Commission is the primary institution to turn to. To achieve its specialized mission it is given broad powers of investigation. The Canadian Human Rights Act, R.S. 1985, c. H-6 also establishes a Canadian Human Rights Tribunal (the tribunal), whose members have experience, expertise and interest in, and sensitivity to, human rights (see s. 48.1(2)), which has a broad power of inquiry, which may determine questions of law and which is empowered to grant a multitude of remedies (see s. 53(2)). Under section 24 of the Canadian Human Rights Act, the Governor in Council may, "for the benefit of persons having any disability, make regulations prescribing standards of accessibility to services, facilities or premises".
[30]. The Agency, on the other hand, is specialized in transportation matters. As noted by this Court in Metropolitan Toronto (Municipality) v. Canadian National Railway Co. (C.A.), [1998] 4 F.C. 506 at 517, the Agency is a "highly specialized tribunal and it is not seriously questioned that the CTA is the depository of much expert knowledge and experience".
[31]. The mandate of the Agency is to oversee the application of the national transportation policy defined in section 5 of the Act. That mandate is aptly described as follows by the Agency on its website (online: Canadian Transportation Agency < http://www.cta-otc.gc.ca > ):
The agency has a mandate to administer the economic regulatory provisions affecting all modes of transport under federal jurisdiction found in various Acts of Parliament. Among other responsibilities, the Agency:
licenses air and rail carriers;
resolves complaints between shippers and railways concerning rail rates, service and other matters as well as complaints between travellers and airlines concerning air tariff matters;
removes undue obstacles to persons with disabilities who travel via the air, rail and marine networks;
approves proposed construction of railway lines;
administers the railway revenue cap regime concerning western grain transportation;
protects the interest of Canadian marine vessels operators when authorizing foreign vessels to operate in Canadian waters; and
participates in international bilateral negotiations and administers bilateral agreements as the Canadian aeronautical authority.
[32]. While the removal of undue obstacles to persons with disabilities is an integral part of the general mandate of the Agency, it must nevertheless be related to its general expertise, which is of an economic, technical and regulatory nature. Members of the Agency might be expected to have some experience in transportation matters (as is illustrated by the conflict of interest provision found in section 10 of the Act). They are not expected to have expertise in human rights matters.
[33]. It follows, in my view, that with respect to persons with disabilities, the Agency's mandate is essentially to ensure that they have proper access to effective transportation services and that there are no physical or structural impediments to their ability to use these services.
[34]. This interpretation is confirmed by the very policies and codes of practice which the Agency has adopted and followed throughout the years. Quite surprisingly, none of these were brought to the attention of the Court.
[35]. In its Code of Practice respecting Passengers Rail Car Accessibility and Terms and Conditions of Carriage by Rail of Persons with Disabilities, adopted in 1998 (online: supra), the Agency has set out minimum standards that rail carriers are expected to meet "for ensuring that persons with disabilities obtain access to their country's transportation system by eliminating unnecessary or unjustified barriers" (Introduction, A).
[36]. The Code of Practice addresses two general areas. Part I deals with "Passenger rail car accessibility". Section 1.2, which applies to all passenger rail cars, covers matters such as identification of the fact that wheelchairs can be accommodated, signage, lighting, stairs, handrails and grab bars, floor, emergency window exits, seats with floor space to accommodate a service animal, tactile seat markers, means to communicate announcements, wash rooms, alarms, storage place for personal wheelchair and on-board wheelchairs provided by carrier. Section 1.3 applies to "coach cars with a wheelchair tie-down" and deals with the number of tie-downs, doorways, washrooms, location of tie-downs and armrests. Section 1.4 deals with "wheelchair-accessible sleeping cars", and so on.
[37]. Part 2 deals with "Terms and Conditions of Carriage by Rail of Persons with Disabilities". Section 2.2.2 deals with "Services provided on request that do not require advance notice". The services are: description at the time of reservation of services available, periodical enquiry about the needs of the person, announcement and, where menus are furnished, assistance in reading it. Sections 2.2.3 to 2.2.7 deal with services that require advance notice. Arrival and departure services include entraining and detraining and transferring between the person's wheelchair and a wheelchair provided by the carrier. On-board services include assisting with transferring between wheelchair and a seat, assisting with moving to washrooms, serving food not accessible to the person, assisting with meals such as opening packages and cutting large food portions, periodical inquiry about the person's needs.
[38]. In another Code of Practice, this one dealing with Removing Communication Barriers for Travellers with Disabilities, the Agency describes its role as follows:
The Agency may make regulations to eliminate undue obstacles in the transportation network under federal jurisdiction. More specifically, the Agency may regulate:
· The design, construction or modification of means of transportation and related facilities and premises and their equipment;
· Signage;
· Training of personnel interacting with persons with disabilities;
· The tariffs, rates, fares, charges and terms and conditions of carriage of persons with disabilities; and
· Communication of information for persons with disabilities.
[39]. The Agency also published some Guidelines for Improving Communications with Persons with Disabilities, the purpose of which is to ensure that consistent and reliable service is provided to travellers with disabilities.
[40]. I fail, with respect, to see how the meal distribution policy could possibly have impeded the complainant's access to the train, her mobility once on board or her capacity to eat her meal. This is not a case where a person with disabilities was disinclined from future travel because of the nature of the arrangements made to enable her to travel and I need not decide whether on-board treatment that had that effect on a passenger could constitute an "obstacle", as Ms. Sikand has indeed admitted that she would not have filed a complaint had she been informed about the meal distribution policy. The complaint in this case is a customer service issue, and a customer service issue does not become an access or a mobility issue merely because it is experienced by a passenger who suffers from a disability. If the human rights of the complainant have been infringed, that is a matter better left to the Canadian Human Rights Commission.
DISPOSITION
[41]. I would allow the appeal, I would set aside Decision No. 115-AT-R-2005 of the Canadian Transportation Agency insofar as it relates to VIA Rail's meal distribution policy and I would dismiss the complaint of Ms. Sikand insofar as it related to that policy.
No costs were sought.
"Robert Décary"
"I agree
J. Edgar Sexton J.A."
"I agree
John M. Evans J.A."
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