In a recent landmark decision, the Supreme Court of Canada upheld a federal regulatory order that forces VIA Rail to spend tens of millions of dollars to provide better access to passengers in wheelchairs. The decision, Council of Canadians with Disabilities v. VIA Rail Canada Inc., will have a significant impact on all federally regulated transport services, including airlines and interprovincial bus companies. More importantly, it will influence the way in which the duty to accommodate to the point of undue hardship is interpreted in the context of human rights complaints.
In late 2000, VIA spent $29.8 million to purchase 139 ‘Renaissance’ rail cars from a French manufacturer. From VIA’s perspective, the purchase of the Renaissance cars was a unique opportunity to significantly increase the size of its fleet at a relatively moderate cost. However, the narrowness of the Renaissance cars meant that they were not accessible to passengers using their own personal wheelchairs. Rather than redesigning the Renaissance cars, VIA took the position that the cars were adequately accessible, proposing that its employees could transfer passengers using personal wheelchairs onto on-board wheelchairs and assist them with washrooms and other facilities.
The Council of Canadians with Disabilities (CCD) filed a complaint with the Canadian Transport Agency (Agency) asserting that the Renaissance cars were inaccessible to passengers using personal wheelchairs. The Agency found that the Renaissance cars constituted ‘undue obstacles’ to persons with disabilities and ordered VIA to redesign 30 of the Renaissance cars so that each daytime train would have one car accessible by personal wheelchair, and each overnight train would have one car with sleeper facilities accessible by personal wheelchair.
Appeal to the Federal Court of Appeal
VIA appealed the Agency’s order to the Federal Court of Appeal, arguing that a redesign of the Renaissance cars would cost at least $48 million, which constituted undue hardship in the circumstances. The Federal Court overturned the Agency’s finding, concluding that the Agency did not properly consider VIA’s entire transportation network, the interests of non-disabled passengers and the interests of other disabled passengers who do not use personal wheelchairs. The Federal Court referred the matter back to the Agency for reconsideration.
Appeal to the Supreme Court of Canada
Upon appeal, the Supreme Court restored the Agency’s decision that the Renaissance cars constituted ‘undue obstacles.’ While noting that the CCD’s complaint was not filed under human rights legislation, the Supreme Court concluded that the Agency, when defining and identifying ‘undue obstacles’ in the transportation context, was required to apply the principles of the Canadian Human Rights Act, including the principle of reasonable accommodation of disabilities.
Appropriate test — The Supreme Court confirmed that its approach to determine whether an obstacle in the workplace violates human rights principles also applies to physical barriers. It also concluded that the Agency had properly considered the factors inherent in a reasonable accommodation analysis by assessing the implications of cost, economic viability, safety and the quality of service to all passengers.
Relevant standards — The Supreme Court reiterated the importance of accommodating affected groups within the standards of the affected group. This meant that, short of establishing undue hardship, VIA was required to accommodate persons in wheelchairs by ensuring that rail cars are accessible to personal wheelchairs. Transferring passengers from their personal wheelchairs to on-board wheelchairs and providing them with other service assistance while on board did not meet this standard. The Supreme Court expressly rejected VIA’s argument that the normal standard of accommodation should not apply because of the unique economic opportunity the purchase of the Renaissance cars represented for VIA.
Inappropriateness of VIA’s ‘network defence’ — The Supreme Court also rejected VIA’s argument that because certain elements of VIA’s passenger rail network are accessible to individuals in personal wheelchairs, the inaccessibility of the Renaissance cars should be overlooked. The fact that the trains on some of VIA’s routes were accessible did not relieve VIA of the duty to provide accessible trains on all routes.
Failure to establish undue hardship — Lastly, the Supreme Court upheld the Agency’s finding that VIA failed to provide concrete evidence in support of its undue hardship argument. Although the Agency had asked VIA to provide such evidence on a number of occasions, VIA failed to provide precise costing information to the Agency prior to the release of the Agency’s decision and the Supreme Court upheld the principle that "impressionistic evidence of increased expense will not generally suffice."
Lessons for Companies
For the transportation industry, this landmark decision indicates that companies should be prepared to ensure access to services for persons in personal wheelchairs.
More broadly, this decision means:
- Canadian companies have a duty to prevent new barriers to mobility for disabled persons and are not permitted to perpetuate existing barriers where they are preventable.
- Canadian companies also have a duty to investigate fully all possible accommodation options, and must consider the costs of those options.
- To prove "undue hardship," Canadian companies must provide detailed and specific costing information to the adjudicator in a timely manner.
- The standard of reasonable accommodation to the point of undue hardship will not be reduced just because a company is presented with a unique economic opportunity.
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