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Interlocutory Decisions : 2002

2002-01-08

LET-AT-R-6-2002

File No. U3570/00-81

The Council of Canadians with Disabilities (CCD) by letter dated November 1, 2001, requests that the Canadian Transportation Agency (the Agency) issue an order for the production of the Alstom and Bombardier contracts which are in the possession of VIA Rail Canada Inc. (VIA). In Agency Decision No. LET-AT-R-442-2001 dated November 9, 2001, the Agency set out the time frames for VIA to file its comments and CCD to file a reply.

To date, in previous decisions, although the Agency has addressed the issue of the release of the Alstom and/or Bombardier contracts, it has not ordered their production. In the latest decision, Decision No. LET-AT-R-377-2001 dated August 15, 2001, the Agency stated that CCD's argument that VIA may rely on the Alstom and Bombardier contracts as justification for an undueness defence was premature. The Agency further stated that it had not yet begun considering the issue of whether the Nightstock (Renaissance) cars present an undue obstacle to the mobility of persons with disabilities. The Agency concluded that CCD had not demonstrated to the satisfaction of the Agency that the contracts were relevant to an undue obstacle determination pursuant to section 172 of the Canada Transportation Act (CTA).

CCD submits, in its letter dated November 1, 2001, that the Agency, in its Decision No. LET-AT-R-377-2001 dated August 15, 2001, set out the preconditions to granting an order giving CCD access to the Alstom and Bombardier contracts. CCD is of the view that as VIA, in its letter dated October 25, 2001, with respect to the Renaissance cars, raised cost as a defence to the removal of undue obstacles, the preconditions set out in the Agency's decision regarding the Renaissance cars have been met and CCD is therefore entitled to an order for the production of the Alstom and Bombardier contracts.

The VIA letter of October 25, 2001 to which CCD refers, was a response by VIA to an issue raised by CCD at the meeting and viewing of the Renaissance cars on September 20, 2001. Briefly stated, in that letter, VIA argued that the widening of the doors to 32 inches within the service car and the expanding of the tie-down location in the coach cars entailed an expense that would represent an undue burden.

In its response dated November 15, 2001, VIA opposes the production of the contracts and submits that, with respect to Alstom and Bombardier, the terms of the contracts are highly confidential and that the information is commercially sensitive. VIA argues that the terms of the contracts are irrelevant to the complaint by CCD, VIA's answer and the Agency's deliberations. Furthermore, VIA adds that CCD has already been given the total costs of the cars and parts, and work to be done by Bombardier. VIA indicates that the total estimated cost of putting the cars into service in Canada is $ 125 M to $ 130 M.

CCD in its reply dated November 20, submits that in Decision No. LET-AT-R-377-2001, the Agency ruled that when the issue of the "undueness" of the costs of implementing alternative remedies to remove barriers to the accessibility of persons with disabilities would be raised by VIA, the relevance of the contracts would be established and their production authorized. In CCD's view, VIA has now raised the undueness issue.

In its reply, CCD refers to the interrogatories dated November 15, 2001 that it addressed to VIA. It is CCD's view that if VIA will not make the Renaissance trains accessible to persons with disabilities by meeting basic access requirements concerning door widths, wheelchair turning locations, wheelchair tie downs and safety, the trains must be returned to their manufacturer. CCD argues that it is entitled to know what penalty must be paid by VIA to Alstom in the event the trains are found to not meet Canadian accessibility requirements. CCD further argues that it is entitled to know whether the penalty is a consequence of VIA's decision to bring the trains to Canada and commence the modification process before allowing the Agency an opportunity to rule on their accessibility. CCD also argues that it is entitled to comparable information concerning the Bombardier contract. CCD is of the view that this contract must have been entered into with VIA's full realization that its production could be ordered as part of these proceedings.

CCD submits that it will respect the terms of any confidentiality order imposed by the Agency regarding the contracts and requests access to the evidence that it argues is the most relevant information that exists on the issue of undueness. CCD submits that it needs the evidence to allow its experts to provide evidence on undueness, and that without this evidence it will be deprived of an opportunity to make informed submissions on the primary issue of the present case. CCD adds that the Agency would also be deprived of expert opinion evidence on the impact of the contracts. In the interests of justice and in fairness to the parties, CCD submits that the contracts should be disclosed at this point in time.

CCD submits that VIA has not complied with subsection 11(3) of the National Transportation Agency General Rules (General Rules) in that it has not even claimed that all of the documents, other than particular portions, need to be kept confidential. VIA has not indicated whether it objects to the placing of an abridged version or part of the document on the public record. CCD states that VIA has thus adopted "an all or nothing approach" that deprives the Agency of any opportunity of fashioning a disclosure order that grants CCD access to at least some portion of these documents. CCD argues further that VIA has not explained why confidentiality is required for an "untendered" purchase using taxpayers' money.

CCD concludes in asserting that VIA has failed to establish specific direct harm that outweighs the public interest in having the contracts disclosed.

In view of the new legal arguments raised by CCD in its reply of November 20, 2001, the Agency, in Decision No. LET-AT-R-461-2001 dated November 27, 2001, granted VIA until November 30, 2001 to file comments, if any, in response to CCD's reply.

On November 30, 2001, VIA filed comments in response to CCD's reply. VIA relied upon the relevant portions of the Agency's previous Decision No. LET-AT-R-377-2001 dated August 15, 2001, in support of its position that CCD mischaracterized the nature of that decision. VIA also refers to its previous submissions made on January 17, 2001, July 13, 2001 and November 15, 2001, in support of its opposition to the production of the contracts.

More particularly, VIA submits that the interrogatories from CCD are merely questions that do not justify CCD's requests for disclosure of the Alstom and Bombardier contracts. According to VIA, the answers to the interrogatories indicate that the contracts are irrelevant to any determination of the undue obstacle issue. In any event, VIA states that they are highly confidential and any usefulness they may have to CCD is outweighed by the importance of keeping the confidentiality of the contracts.

VIA repeats its submissions that the issue of undueness can be fully analysed with the information available to CCD and without access to the contracts; therefore, CCD is not deprived of an opportunity to make informed submissions by reason of the Agency's earlier decision to not disclose the contracts.

VIA also indicates that nothing in CCD's submission of November 15, 2001 changes the facts available to the Agency when it made its prior decision. Accordingly, VIA states that there is good reason for the Agency not to review its earlier decision and that, at some point, the Agency must adopt the principle that an earlier decision in the same case, based on the same facts, ought not to be altered.

VIA dismissed CCD's submission about justice and fairness as being not persuasive and adding nothing to its earlier position, as CCD was given full information where relevant and justified. In any event, VIA objects to the disclosure of the contracts or either part thereof and dismisses CCD's argument on the taxpayers' money as being of no assistance.

VIA indicates that CCD has been arguing its case in public and that it has given press releases and made statements with which VIA fundamentally disagrees and on matters which are either within the jurisdiction of the Agency or already determined by the Agency to be beyond its jurisdiction.

VIA concludes by submitting that the Agency ought not to amend its earlier decision, that there are no new facts or issues which could cause the Agency to even commence the review and that, in any event, the contracts are irrelevant to the Agency's deliberations. VIA submits that CCD has all the information necessary to make its submissions and that the Agency should thus deny CCD's request for production of the contracts.

Analysis

In its Decision No. LET-AT-R-377-2001, the Agency dismissed CCD's request for the production of the Alstom and Bombardier contracts. The Agency stated that until VIA provided the Agency with a copy of the plan dealing with the accessibility features and until the Agency carried out its inspection of the railway cars, it could not be said that the Agency had considered the issue of "undueness". The Agency did not thereby set out the terms under which disclosure of the Alstom and Bombardier contracts would be ordered with respect to CCD's argument about the preconditions set out in Decision No. LET-AT-R-377-2001, nor was the Agency stating that the Alstom and Bombardier contracts would be disclosed to CCD as soon as VIA filed the plans of the Renaissance cars and the Agency would have carried out its inspection of the trains. The Agency was responding to CCD's incorrect assumption that the Agency, at the time, had already undertaken its analysis of the "undue obstacle" issue.

The present request

In its third request, CCD is arguing that because VIA is raising cost as a defence to the widening of the doors to 32 inches within the service car and the expanding of the tie-down location in the coach cars, the Alstom and Bombardier contracts should be disclosed.

CCD, as set out above, is of the view that Agency Decision No. LET-AT-R-377-2001 dated August 15, 2001 sets out the preconditions to granting an order giving CCD access to the Alstom and Bombardier contracts and that these preconditions have now been met. Although this Decision did address CCD's request for the release of these two contracts, it did not establish preconditions for their release. In essence, the Agency stated that until VIA provided the Agency with a copy of the plan dealing with the accessibility features and until the Agency carried out its inspection of the railway cars, it could not be said that the Agency had considered the issue of "undueness".

Pursuant to subsection 11(12) of the General Rules, the factors to be considered in deciding whether to disclose a confidential document is the relevancy of the document and the specific direct harm resulting from its disclosure.

It follows from CCD's submissions on the disclosure of the contracts, as well as from the interrogatories it has filed, that a primary reason why CCD is requesting production of the contracts is to determine the costs to VIA should the Agency determine, after making a possible undue obstacle finding, that the trains should be returned . CCD is questioning whether the purchase can be cancelled and, if so, at what costs. CCD submits that this factor is relevant to its view that if VIA does not make the trains accessible to persons with disabilities, it should return the trains to their manufacturer.

Pursuant to subsection 172(1) of the CTA, the Agency's mandate in the present case is to determine whether features of the Renaissance cars present undue obstacles to the mobility of persons with disabilities. If the Agency does find that features do present undue obstacles to the mobility of persons with disabilities, the Agency has jurisdiction, pursuant to subsection 172(3) of the CTA, to order that corrective measures be implemented to eliminate those undue obstacles. Depending on the circumstances involved in an application before the Agency, the corrective measures ordered by the Agency could include the development of training programs, the installation of accessible features in equipment and the provision of services to be provided to persons with disabilities. It is not foreseeable in this case however that the Agency in ordering corrective measures would order VIA to cancel contracts or return equipment as seems to be the measures that CCD is looking to the Agency to implement. If the Agency were to find undue obstacles and order corrective measures, it would then be for VIA to decide whether to implement the corrective measures ordered by the Agency or to take the contractual remedies it deems appropriate.

CCD also requests production of the contract to allow its experts to provide evidence and to not be deprived of the opportunity to make informed submissions on the primary issue of undueness. The Agency is of the view that CCD and its experts can submit their arguments as to whether features of the Renaissance trains present undue obstacles to persons with disabilities without the disclosure of the contracts.

The Agency wishes to remind both parties that costs are only one of many factors that come into play in an undue obstacle analysis. (VIA Rail Canada Inc. v. National Transportation Agency and Jean Lemonde, File No. A-507-96, October 10, 2000). Therefore, it cannot be said that each time VIA refers to the cost of a particular accessibility feature as a financial justification for an undueness defence it does so in reference to the purchase price of the Renaissance trains or to the service contract it has with Bombardier. However, if the Agency, in reviewing the final arguments put forward by both parties, determines that VIA refers directly or indirectly to any financial data in either of the contracts to oppose CCD's arguments on whether the trains present undue obstacles to persons with disabilities, the Agency will then determine, on its own motion, whether it will disclose the contracts, or any part thereof, to CCD. At this point in time, however, the Agency is of the view that both contracts are not relevant to the issue of an undue obstacle determination pursuant to section 172 of the CTA.

Conclusion

The Agency denies CCD's request for production of the Alstom and Bombardier contracts.