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Decision No. 791-R-1995

November 28, 1995

APPLICATION by Mr. Lemonde, on behalf of Minikami (Club de mini Basket-ball en fauteuil roulant "Les Kamikazes"), pursuant to subsection 63.3(1) of the National Transportation Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.).

BACKGROUND

On January 4, 1994, Mr. Lemonde (hereinafter the applicant), on behalf of Minikami (Club de mini Basket-ball en fauteuil roulant "Les Kamikazes"), filed an application with the National Transportation Agency (hereinafter the Agency), pursuant to subsection 63.3(1) of the National Transportation Act, 1987 (hereinafter the NTA, 1987).

In his complaint, the applicant described numerous difficulties encountered by a group consisting of eight wheelchair athletes and their attendants on a December 1993 round trip with VIA Rail Canada Inc. (hereinafter VIA) between Saint-Hyacinthe, Quebec and Toronto, Ontario via Montréal, Quebec.

Following its investigation, the Agency determined in its decision communicated by letter on November 4, 1994 that certain actions and practices on the part of VIA constituted undue obstacles to the mobility of the persons with disabilities in the travelling party. As a result, VIA was required to take several corrective measures and to report back to the Agency on such actions. VIA was required to ensure that the boarding equipment at the Saint-Hyacinthe station is accessible to all employees who need to access it and that it is operational at all times; that it inform persons with disabilities of all options available in terms of equipment or aids for making level changes between platforms in its terminals and allow the person to participate in the selection of such equipment or aids; that it provide the Agency with a copy of its policy on the swivelling of seats; that it ensure an adequate level of resources to promptly respond to the special needs of its passengers; that it indicate in the passenger reservation system the special services requested and provide a copy of this information to the passenger; and that it reimburse the group for expenses incurred as a result of the undue obstacles.

During the course of this investigation, it was noted that a provision in the VIA tariff requires that attendants accompanying persons with disabilities be capable of assisting those persons to entrain and detrain, as well as providing assistance for any personal needs during a trip, such as eating, medical care, and personal hygiene. The Agency determined that providing assistance during boarding and deboarding was the responsibility of the carrier and, consequently, it was decided that imposing this condition on the attendants was an obstacle. In the Agency decision of November 4, 1994, VIA was asked to show cause why the Agency should not find this obstacle "undue" and why VIA should not be ordered to remove this requirement from its tariff.

RESPONSE FROM VIA

In its December 5, 1994 response to the corrective measures requested by the Agency, VIA stated that its agents in Saint-Hyacinthe now have access to the key for the lift. It agreed that passengers with disabilities should have the choice of using the lift or elevator to move between the station concourse and train platform, although it stated that in the case of large groups, it is not always possible to accomplish the transfer within a short time frame. It submitted that, following an investigation into the alleged service shortcomings, all front-line employees are undergoing a two-day training program on services to be provided to persons with disabilities, with a particular emphasis placed on employee attitude. VIA also provided a copy of its policy on the swivelling of seats, as requested by the Agency. VIA submitted that information is entered into its Special Service Request system (hereinafter SSR) in order to allow the carrier to provide the required level of resources. With regards to providing passengers with a copy of their individual SSR file, VIA stated that such files contain information and comments not destined for consumer use and objected to the direction that they must be provided to its passengers. The carrier added that a reimbursement cheque had been sent to the applicant.

Regarding the request of the Agency for VIA to show cause why its tariff requiring attendants accompanying persons with disabilities be capable of assisting in entraining and detraining should not be classified as an undue obstacle, the carrier submitted that "the NTA, 1987 provides that a carrier should, to the extent possible, eliminate obstacles to the mobility of persons with disabilities". VIA stated that this should be interpreted to include operational requirements, as well as the level of service to be provided to all passengers who have paid a fare. It stated that, in this instance, it would have been impractical to use the boarding devices in either Saint-Hyacinthe or Toronto as each passenger lift takes about 10 minutes. Therefore, in Saint-Hyacinthe it would have taken 80 minutes to board the eight wheelchair users and this would have resulted in a delay of at least one hour for all passengers. Further, without the assistance of the attendants, the group would have missed its connecting train. In the case of the departure from Toronto, passengers would have had to arrive at the terminal one and a half hours before departure, resulting in some passengers having to wait in the cold on the train platform for over one hour before boarding.

VIA is of the opinion that the provision in the tariff is "not discriminatory". It submitted that attendants who travel with non-disabled groups also travel free of charge and are required to assist in the boarding and deboarding of the passengers in their group. The objective of the provision is to ensure an efficient service and to limit late departures. The carrier stated that this provision is to the advantage of not only persons with disabilities, but of all VIA passengers and the carrier.

VIA also stated that certain stations are not equipped with boarding lifts and have few or no employees. VIA added that both the Canada Labour Code and the Occupational Health and Safety Regulations permit any employee to refuse to lift anything which he or she believes would cause him or her injury. Therefore, in such situations, the physical assistance of the attendant is essential.

LEGISLATION

Paragraph 63.1(1)(b) of the NTA, 1987 states:

The Agency may, with the approval of the Governor in Council, make regulations for the purpose of eliminating undue obstacles in the transportation network governed by this Act to the mobility of disabled persons, including regulations respecting

...

(b) the training of personnel employed at or in those facilities or premises or by carriers;

Subsection 63.3(1) of the NTA, 1987 states:

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

Subsection 63.3(3) of the NTA, 1987 states:

On determining that there is an undue obstacle to the mobility of disabled persons, the Agency may order either or both of the taking of appropriate corrective measures or the payment of compensation for any expense incurred by a disabled person arising out of the undue obstacle.

THE ISSUES

The Agency may determine whether or not:

1) VIA has complied with the corrective measures set out in the Agency decision of November 4, 1994; and

2) the tariff provision of the carrier requiring attendants to provide physical assistance in entraining and detraining their charges constitutes an undue obstacle and, if so, what corrective measures would be appropriate.

ANALYSIS

With respect to the Agency decision of November 4, 1994, the Agency is of the view that VIA has complied with the corrective measures ordered.

The Agency further notes that VIA has undertaken to improve the awareness of all its employees who may be required to interact with the public or to make decisions with respect to the carriage of persons with disabilities. The Agency also notes that all VIA employees who are required to be trained in accordance with the Agency's Personnel Training for the Assistance of Persons with Disabilities Regulations have been trained and this training was completed on March 1, 1995.

With regards to the submission of VIA that the computer reservation contains information not usually intended for consumer use, the Agency has reviewed the reservation files and notes that they contain various codes and abbreviations which a layperson might find difficult to interpret. Accordingly, the Agency determines that VIA's concern has merit. While the Agency is firmly resolved that written confirmation of requested services be provided to travellers with disabilities in advance of their trip, it hereby advises VIA that the manner in which this confirmation is conveyed to the passenger will be left to the discretion of the carrier.

With regards to the show cause on its policy that attendants accompanying passengers with disabilities be capable of assisting the carrier's personnel in entraining or detraining these travellers, VIA states that the policy is to ensure a reliable and efficient service to all its passengers. The Agency agrees with VIA that a carrier has an obligation to provide a timely and efficient service to all its passengers; however, the Agency questions if the carrier should rely on the assistance of persons with disabilities or their attendants to achieve this goal.

Furthermore, VIA stated that, under the Canada Labour Code and the Occupational Health and Safety Regulations, an employee has the right to refuse to lift anything which could result in injury. While the Agency recognizes the legitimacy of an employee taking precautions to ensure one's safety, it notes that, under specific circumstances, the right of employees to refuse to work is limited. Paragraphs 128(2)(a) and (b) of the Canada Labour Code provides that an employee may not pursuant to this section refuse to use or operate a machine or thing or to work in a place where 1) the refusal puts the life, health or safety of another person directly in danger; or 2) the danger referred to in subsection (1) is inherent in the employee's work or is a normal condition of employment. Therefore, the Agency submits that VIA, as a carrier providing a full range of services to the public, must provide all aspects of that service, including assisting all passengers with entraining and detraining. In order to do so, VIA is obliged under paragraph 125 (q) of the Canada Labour Code to "provide, in the prescribed manner, each employee with the information, instruction, training and supervision necessary to ensure the safety and health at work of that employee".

In addition, the Agency's Personnel Training for the Assistance of Persons with Disabilities Regulations, which came into effect on January 26, 1995 and which apply to federal rail, marine and air carriers, and terminal operators' employees and contractors, require that employees, consistent with their duties, are to be fully trained and familiar with lifting techniques in order to provide assistance to persons with disabilities.

It would appear that, in general, VIA does provide assistance in boarding and deboarding as it submitted in its reply, "assistance in boarding or deboarding our trains is offered to all our passengers, whether they be a person with a disability or not". This is supported by VIA's General Instructions to Passenger Train Conductors, paragraph 3.1, which states:

Assist customers entraining or detraining. Pay particular attention to those with children, the aged, and the travelling disadvantaged. For those with ambulatory difficulties, VIA is obliged to offer lifting assistance in entraining or detraining and/or otherwise assisting the customer to or from seat or wheelchair tie-down. This assistance is strictly limited to what each employee considers reasonable and safe for their particular physical ability.

However, other statements found in VIA's tariff and brochure lead to some confusion as to what role the attendant/escort and VIA personnel are to perform on boarding and deboarding. For example, VIA's Special Local and Joint Passenger Tariff 1, NTA 1, section 13-D provides that " The attendant must be capable of assisting the disabled person to get on and off trains and of attending to his/her personal needs throughout the trip".

Conversely, VIA's Services for Passengers with Special Needs brochure, revised August 1995, provides at page 8 under the heading, Passengers requiring an escort, that "...the escort must be capable of assisting VIA personnel upon request in entraining, detraining, or transferring the passenger" while at page 9 it states under the heading, Passengers in wheelchairs, that "Passengers in wheelchairs can be boarded with a station-based lift in most Corridor stations and major transcontinental stations ... or with assistance from VIA personnel, in most other locations. Although staff will make all possible effort to provide sufficient aid, passengers in wheelchairs should be prepared to provide their own assistance for entraining and detraining at stations not equipped with lifts".

The Agency remains of the opinion that it is the responsibility of VIA to board and deboard its passengers. Under normal conditions and with sufficient advance notice, the carrier should be in a position to control the quality and level of services - both personnel and equipment - to accommodate the boarding and deboarding needs of passengers with disabilities. As a general principle, attendants are there to provide assistance of a personal nature to the person during the trip. To put the onus on the attendant that "the attendant must be capable of assisting the disabled person to get on or off trains..." as found in VIA's Special Local and Joint Passenger tariff, is an undue obstacle to the mobility of persons with disabilities.

Notwithstanding the above, and in no way to dilute the responsibility of the carrier in the boarding and deboarding process, the Agency does not find it unreasonable for VIA to inquire at the time of booking if an attendant could assist VIA personnel, if necessary, in the boarding and deboarding process. Examples of where VIA may have to look for the assistance of an accompanying attendant is when the carrier is called upon to accommodate group travel or to board or deboard individuals or groups at certain stations where there may be insufficient VIA personnel.

The Agency recognizes that because of the time constraints imposed by its operating schedules, a carrier may encounter difficulties when called upon to board or deboard a large number of passengers with disabilities at the same time. Depending on the size of the group, the carrier may be faced with time constraints in using the boarding equipment between arrival and departure. However, as was done with the Lemonde group, the Agency is of the opinion that VIA should consult with the tour organizer in all group travel situations to determine in advance the level of assistance the tour organizer will assume for the benefit of the group. Following that, arrangements may be made in advance for the tour escort to provide VIA personnel with the level of assistance required for the boarding and deboarding of the group. In such a situation, the tour escort could very well decide to request the assistance of the accompanying attendants in boarding and deboarding on his behalf, but the entraining and detraining and the arrangement for this assistance remain the responsibility of VIA.

As was noted in the case of the Lemonde group, and although the said arrangement led to some confusion, the tour organizer and VIA did discuss the level of assistance to be provided. In the future, a written confirmation of the services that are to be provided by the carrier should prevent a recurrence of the situation experienced by this group.

Another difficult circumstance would be where there is insufficient VIA personnel on certain routes and/or at certain stations to safely entrain and detrain passengers with disabilities. In these cases, VIA will be required to determine with the passenger at the time of booking if the attendant will provide assistance, and where a person is travelling without an attendant, discuss with the passenger the possibility of obtaining local assistance through the passenger's acquaintances at destination point. The Agency reiterates that it is VIA's responsibility to ensure the boarding and deboarding of the passenger and, if all else fails, VIA will have to ensure that sufficient assistance is made available. As an example, VIA may explore the possibility of contracting local personnel to assist in the boarding and deboarding.

In these situations, the Agency finds it reasonable that the carrier be given sufficient advance notice of the group and/or passenger's travel plans.

In conclusion, the Agency is of the opinion that it remains the responsibility of the carrier to board and deboard its passengers. The Agency finds that the tariff provision as found in VIA's Special Local and Joint Passenger tariff creates an undue obstacle. The Agency finds that this provision must be amended to delete the current wording that "the attendant must be capable of assisting getting on or off trains" and clearly reflect that the boarding and deboarding of all its passengers is VIA's responsibility. However, a proviso may be included to reflect that VIA may inquire, at the time of booking, whether the passenger's attendant would be able to assist VIA personnel, if necessary.

FINDINGS

After consideration of all the facts and submissions on file, the Agency concludes that the corrective measures implemented by VIA to eliminate the undue obstacles identified by the Agency in its decision of November 4, 1994 fulfil VIA's obligations as set out in that decision. In addition, given the difficulties in providing a passenger with a copy of VIA's reservation file, the Agency allows VIA discretion in how it will provide written confirmation of requested services to its passengers.

The Agency finds that the provision contained in VIA's Special Local and Joint Passenger Tariff 1, NTA 1, section 13-D constitutes an undue obstacle to the mobility of persons with disabilities. The Agency is of the opinion that the tariff provision must be amended by striking the words "The attendant must be capable of assisting the disabled person to get on and off trains" and by clearly stating that the boarding and deboarding of all its passengers is VIA's responsibility.

VIA may include a proviso in its tariff to reflect that VIA may inquire, at the time of booking, whether an accompanying attendant would be able to assist VIA personnel to safely board or deboard a person with a disability.

VIA is also required to amend material it publishes, such as its Services for Passengers with Special Needs brochure, to reflect its responsibility for the boarding and deboarding of its passengers. However, in light of its recent reprinting, VIA is required to reproduce the brochure no later than one year from the date of this Decision or at its next reprinting, whichever is earlier, and must, in the interim, issue a bulletin to all employees informing them of this change. A copy of this bulletin is to be provided to the Agency within 30 days from the date of this Decision.

An Order to this effect will be issued.