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Interlocutory Decisions : 2001

2001-02-22

LET-AT-R-82-2001

File No. U3570/00-81

The Council of Canadians with Disabilities (CCD), by letters dated February 1 and 7, 2001 requests that the Canadian Transportation Agency (Agency) consider a number of issues which are set out below. CCD's request that the Agency proceed with the issuance of an interim order is addressed in a separate Agency Decision. By letter dated February 9, 2001, VIA Rail Canada Inc. (VIA) responded to CCD's requests for relief.

Interim order for costs

CCD revises its request for costs and seeks a compensatory interim order for costs it has sustained in the amount of $18,500. In support of its request, CCD refers to section 25.1 of the Canada Transportation Act (CTA) and the fact that the Agency has all the powers that the Federal Court has to award costs in any proceeding before it. CCD further submits that it has brought its application before the Agency in the public interest and that "VIA has made this process as difficult and expensive as it can".

VIA repeats its earlier submissions that costs should not be made against VIA and that the application should be dismissed with costs against CCD.

As the Agency has stated in past decisions, the Agency does not, as a matter of course, award costs in matters before it. The Agency looks at many factors and considers many aspects of a proceeding in order to determine whether an award of costs is appropriate and justified.

The Agency is of the opinion that at this point in the proceedings it is unable to make such an evaluation and eventual determination as to whether an award of costs in favour of CCD is appropriate.

CCD has requested that the contract between Alstom Transport Limited (Alstom) and VIA be disclosed to CCD as the contract is relevant to the issues of undueness and that it would be prejudiced if it were not given access.

Decision No. LET-AT-R-19-2001 dated January 16, 2001 required VIA to file with the Agency a copy of its contract with Alstom and provide a copy to CCD. VIA in providing the Agency with a copy of the contract requested that pursuant to section 12 of the National Transportation Agency General Rules that the contract be treated as confidential and that it not be placed on the public record. In light of this claim VIA did not provide a copy of the contract to CCD.

When such a claim for confidentiality has been made, one of the issues that the Agency considers in determining whether a document should be released to another party is whether the document is relevant to the proceeding in which disclosure is sought.

The Agency is of the opinion that CCD has not demonstrated to the satisfaction of the Agency that, at this point in the proceedings, the contract is relevant to an undue obstacle determination pursuant to section 172.

CCD requests that the Agency enforce its production order set out in Decision No. LET-AT-R-35-2001 dated January 24, 2001. This issue has been addressed by the Agency in Decision Nos. LET-AT-R-80-2001 dated February 22, 2001 and LET-AT-R- 81- 2001 dated February 22, 2001.

CCD refers the Agency to the fact that no CCD representative or CCD expert has had the opportunity to view the Nightstock cars. CCD requests that the Agency issue an order granting Mr. Woolam, a mechanical engineer, as well as any other expert CCD retains, access to the Nightstock cars at a time convenient to them.

The Agency in Decision No. LET-AT-R-80-2001 dated February 22, 2001 has confirmed that it has the necessary jurisdiction to investigate CCD's complaint. As part of this investigation process, the Agency has determined that it intends to view the Nightstock cars. In order to facilitate this process, the Agency will issue directions as to the procedures to be followed at the view. CCD will have the opportunity to have its expert present to view the Nightstock cars.

CCD submits that VIA's decision to not hold an anticipated viewing of the Nightstock cars at the January meeting of the Minister of Transportation's Advisory Committee on Accessible Transportation (ACAT) meant that CCD as well as other ACAT members were not able to view the cars. Accordingly, CCD requests that the Agency order VIA to reimburse any ACAT member who wishes to view the cars for their reasonable travel expenses provided that they file with the Agency their written views of the Nightstock cars.

The Agency always encourages industry to consult on matters affecting the community of persons with disabilities. Although VIA has indicated throughout its submissions that it is continuing to consult on accessibility, CCD has expressed dissatisfaction with the process followed by VIA. However, the nature of these consultations and the parties consulted by VIA are at the discretion of VIA. The Agency cannot order VIA, as part of VIA's own consultative process, to reimburse individuals for their travel expenses.

By this letter and Agency Decision No. LET-AT-R-81-20001 dated February 22, 2001, the Agency has addressed the issues raised by CCD in its letters of February 1 and 7, 2001.