SCC Requires Accessible Rail Cars

Council of Canadians with Disabilities v. Via Rail Canada Inc. (2007), 59 C.H.R.R. D/276, 2007 SCC 15

The Supreme Court of Canada, in a split 5–4 decision, overturned a ruling of the Federal Court of Appeal, and held that the Canadian Transportation Agency's requirement that Via Rail modify rail cars was reasonable. The appeal concerned the rights of people with disabilities to accessible rail transportation under the Canadian Transportation Act and raised questions about the extent to which persons who use wheelchairs must be able to be self-reliant when using the national railway.

In late 2000, VIA purchased 139 used cars and car parts, costing $29.8 million, renamed the "Renaissance cars", by VIA. None of the cars was accessible to persons with disabilities using personal wheelchairs. There was no "plan document" to enhance accessibility when the cars were purchased. VIA's position from the outset was that the cars were sufficiently accessible. VIA proposed that its employees would transfer passengers into on-board wheelchairs, deliver their meals, assist them with the use of washroom facilities, and provide other necessary services. Under the Canadian Transportation Act, the Agency has a mandate to address "undue obstacles" to the mobility of persons with disabilities, and it has complaint adjudication powers. The Council of Canadians with Disabilities took a successful complaint to the Agency, alleging that forty-six features of the Renaissance cars constituted "undue obstacles". VIA was given an opportunity to show that the removal of the obstacles would cause undue hardship for VIA. VIA refused to provide cost estimates.

The majority of the Supreme Court of Canada upheld the decision of the Agency requiring that VIA modify thirteen economy coach cars and seventeen service cars out of the 139 cars, so that there would be one personal wheelchair accessible car on each daytime train and personal wheelchair accessible sleeper facilities on each overnight train. On appeal to the Court of Appeal, which found the Agency's conclusion to have been patently unreasonable, VIA filed a report estimating that the cost of implementing the Agency's decision would be $48 million.

In the Supreme Court, Abella J., writing for the majority, found that the standard of review for the decision as a whole, is patent unreasonableness. When interpreting the Act, including its human rights components, the Agency is expected to bring its policy knowledge and experience to bear. Viewed as a whole, the Agency approached and applied its mandate reasonably.

Most significantly, in the view of the majority, the Agency complied substantially with the Supreme Court of Canada's directions in British Columbia (Public Service Employee Relations Comm.) v. B.C.G.E.U. (1999), 35 C.H.R.R. D/257 ("Meiorin") for assessing reasonable accommodation, and applied the correct burden of proof. While the Agency did not conduct a step-by-step application of Meiorin, it did apply its guiding principles and adapted them to fit its governing statutory mandate. In the absence of specific evidence of undue hardship, the Agency's rejection of VIA's economic arguments was consistent with this Court's guidance in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights (1999), 36 C.H.R.R. D/129 ("Grismer") that "impressionistic evidence of increased expense will not generally suffice".

The majority noted that to redress discriminatory exclusions, human rights law favours approaches that encourage, rather than fetter, independence and access. This means an approach that, to the extent structurally, economically and otherwise reasonably possible, seeks to minimize or eliminate the disadvantages created by disabilities, in other words, reasonable accommodation.

The Court held that Meiorin defines the balancing required to determine whether a workplace obstacle or standard unjustifiably infringes human rights principles. There is a duty of reasonable accommodation. The statutory qualifier in the Canadian Transportation Act — "as far as practicable" — is the equivalent of undue hardship. The Court found that the Agency's decision was not unreasonable in its consideration of factors such as the minimum standards established by the Rail Code, the way in which use of personal wheelchairs minimizes the effects of disabilities, the lack of evidence supporting VIA's contention that the network as a whole could address the obstacles, and the lack of compelling evidence of economic impediments (cost), either in determining whether the obstacles were undue, or in determining what corrective measures were appropriate.

Regarding the duty to accommodate people who use wheelchairs, the majority found that "the accommodation of personal wheelchairs enables persons with disabilities to access public services and facilities as independently and seamlessly as possible. Independent access to the same comfort, dignity, safety and security as those without physical limitations, is a fundamental human right for persons who use wheelchairs. This is the goal of the duty to accommodate: to render those services and facilities to which the public has access equally accessible to people with and without physical limitations".

On behalf of the four dissenting judges, Deschamps and Rothstein JJ. wrote that the Agency is not entitled to deference, and disagreed with the majority decision on the merits. The dissenting judges held that in determining whether the obstacles were undue, the Agency erred in failing to properly consider various factors and principles relevant to the undue hardship analysis, established by Meiorin, namely: the objective of the rule or policy; the rational connection between the objective and the obstacle; the honest and good faith belief of the carrier; the reasonable alternatives; the balancing of the significance of the obstacle against the economic impact of the corrective measures. The Agency failed to consider VIA's legitimate goals relating to efficiency and economic viability in purchasing the cars. The Agency did not consider how the obstacles might be circumvented by alternatives available in the VIA transportation network. The Rail Code and personal wheelchair accessibility standards are not regulatory requirements. The Agency failed to adequately consider structural constraints and the total estimated cost to remedy the obstacles, having regard to VIA's objective of economic viability. Without a total cost estimate, the Agency could not carry out the required balancing to determine whether the carrier's refusal to eliminate obstacles is reasonably necessary to achieve the legitimate purpose relied upon. The Agency also treated VIA's resources as though they were virtually unlimited, and was dismissive of VIA's concerns about cost. This is not the correct approach where the cost of the measures is potentially very substantial.

The decision of the Canadian Transportation Agency was restored.

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