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Interlocutory Decisions : 2001

2001-02-22

LET-AT-R-80-2001

File No. U3570/00-81

On January 24, 2001, the Canadian Transportation Agency (Agency) issued Decision No. LET-AT-R-35-2001 concerning the request by the Council of Canadians with Disabilities (CCD) that the Agency issue an interim order against VIA Rail Canada Inc. (VIA).

By letter dated January 31, 2001, VIA made a number of submissions questioning the Agency's jurisdiction with respect to section 172 of the Canada Transportation Act (CTA). VIA states that CCD is asking the Agency to make a finding that "cars not yet in operation will in the future represent an undue obstacle." VIA argues that the Agency cannot consider the matter on a prospective basis.

By Decision No. LET-AT-R-45-2001 dated February 2, 2001, the Agency asked the parties for further submissions on the matter of its jurisdiction.

CCD asserts that the Agency's adjudicative power under section 172 of the CTA is derived from its regulatory jurisdiction pursuant to section 170. CCD states that the Agency has jurisdiction to issue regulations concerning the "design, construction, or modification" of the Nightstock cars and that "if the purposes of the CTA are to be served, and undue obstacles to the mobility of persons with disabilities fully and finally eliminated, it is essential that the Agency be able to address barriers prospectively".

CCD further argues that section 28 of the CTA provides the Agency with a means of issuing final orders to address future events.

CCD also refers to American cases and concludes that the Agency has the same legal authority as the courts in the United States to issue prospective and interim orders.

VIA responds that section 172 of the CTA forms the sole basis of the Agency's jurisdiction and that section 28 of the CTA does not grant additional jurisdiction to the Agency where no undue obstacle exists.

VIA asserts that CCD's application is premature in that the "necessary facts to found the application do not presently exist".

VIA submits that section 172 of the CTA invokes the Agency's adjudicative function which involves the Agency applying legal and statutory principles to a set of facts which exist. In contrast, section 170 of the CTA provides the Agency with a regulatory function and this power is not being exercised by the Agency.

VIA further submits that CCD, in its discussion of the Canadian Human Rights Commission, has highlighted that Parliament has not given the Agency the power to make a prospective order under section 172 of the CTA. Further, section 28 of the CTA does not give the Agency the power to make such orders. Finally, VIA submits that the American cases cited by CCD have no relevance to CCD's application.

The Agency has carefully reviewed and considered all of the submissions filed by VIA and CCD regarding the issue of the Agency's jurisdiction to consider CCD's application pursuant to section 172 of the CTA.

Part V of the CTA sets out the Agency's statutory mandate regarding accessible transportation. In this regard, subsection 172(1) states

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. (Emphasis added)

Upon a finding by the Agency that there is an undue obstacle to the mobility of persons with disabilities, the Agency may, pursuant to subsection 172(3) of the CTA require the taking of appropriate corrective measures.

Accordingly, in order to determine the extent of the Agency's jurisdiction pursuant to section 172 of the CTA reference must be made to section 170 of the CTA. Paragraph 170(1)(a) of the CTA states that the Agency may make regulations for the purpose of eliminating undue obstacles respecting:

(a) the design, construction or modification of, and in the posting of signs on, in or around, means of transportation and related facilities and premises, including equipment used in them.

The Agency is of the opinion that section 172 in conjunction with paragraph 170(1)(a) of the CTA clearly contemplates the Agency making an undue obstacle determination in advance of rail equipment being put into service. Contrary to VIA's assertion that the "Agency's adjudicative jurisdiction should await a proper factual foundation based on individual complaints arising in existing circumstances" the Agency is of the view that there is nothing in either paragraph 170(1)(a) or section 172 of the CTA that would suggest that this narrow interpretation should be adopted.

In fact, to adopt a narrow interpretation would severely limit the Agency's execution of its mandate to eliminate undue obstacles. The Interpretation Act states that statutes are deemed to be remedial and are thus to be given such fair, large and liberal interpretation as will best ensure that their objects are attained.

The Supreme Court of Canada has recognized the particular importance of this approach in interpreting legislation which deals with the rights of individuals. In interpreting this type of legislation, the Supreme Court of Canada has looked to the purpose of the enabling legislation. As stated above, the Agency's mandate is to ensure the removal of undue obstacles to the mobility of persons with disabilities. If the Agency were to find that some features in the final design of a rail car that will be put into service constitute undue obstacles, the Agency may then require the implementation of corrective measures regarding the design, construction and modification of that equipment. As such, a corrective measure ordered by the Agency could relate to a certain feature which is included in the final design of a rail car and which must be removed or modified. This is in keeping with the Agency's mandate.

In fact, should it find an undue obstacle, the Agency does not necessarily have to issue a prospective order or deal with prospective facts. The Agency may simply find that a feature in the design of the train constitutes an undue obstacle and that corrective measures, such as modifications of that design, are appropriate.

For example, in CCD's submission of January 8, 2001, it alleges that "at least one of the three washrooms in the coach car must provide wheelchair access". In order for the Agency to determine whether there is an undue obstacle regarding washroom facilities, it does not have to wait for the cars to be put into service so that a person with a disability can actually travel on the Nightstock cars and file a complaint with the Agency with respect to the level of accessibility of the washrooms in the coach car. Rather, this determination can be made based on design features and evidence as to accessible washroom requirements.

In light of the above, the Agency is of the opinion that it has jurisdiction to consider CCD's application.

As part of the Agency's investigation of CCD's complaint under section 172 of the CTA it is necessary for the Agency to gather information. The plans and proposals that the Agency has required VIA to file as set out in Agency Decision No. LET-AT-R-35-2001 dated January 24, 2001 are necessary to assist in forming the factual basis for the Agency's eventual determination of the complaint filed by CCD. It is this information, along with the submissions of CCD and VIA, as well as all other evidence on file, that will permit the Agency to apply its expertise to determine whether the features identified by CCD in its application and which VIA proposes to incorporate in the final configurations of the Nightstock cars constitute undue obstacles to the mobility of persons with disabilities.

Accordingly, the Agency requires information as to the eventual configuration of the Nightstock cars that will go into service. This information could be produced in many forms including plans. VIA is to file with the Agency, with a copy to CCD, information regarding the eventual configuration of the Nightstock cars, including plans if they contain such information. Any subsequent changes to any information filed with the Agency by VIA must also be provided to CCD.

To date, with regard to CCD's complaint, considerable time has been expended on addressing legal issues including that of jurisdiction. The Agency is now ready to proceed with its investigation and to gather the information it requires to render a decision. In furtherance of this investigation, the Agency is of the opinion that a viewing of the Nightstock cars by the Agency will assist in its consideration of CCD's complaint. This will provide the Agency with an opportunity to actually view what, to this point, has only been described on paper. The parties will soon be contacted by Agency counsel to discuss in more detail the specifics of the view as well as the further steps required in the Agency's investigation process.