Yesterday bakerlaw congratulated our clients on the Canadian Transportation Agency’s (“CTA”) decision, insofar as it went to grant them their requested remedies. You can read the decision here (link).

Our clients are husband and wife and are frequent travellers on VIA Rail. They both use a mobility aid but can transfer to a regular train seat. For years they have fought with VIA to ensure that both scooters can be accommodated on the same train. Our clients sought a decision from the CTA which recognized that VIA trains should have more tie-down spots per train. Before they came to us, in an effort to demonstrate the simplicity of their requested accommodation, our clients even participated in a feasibility study testing the idea of storing two scooters in one tie-down spot on certain trains. The result of the study confirmed that it is possible to store two scooters in one tie-down spot.

Because VIA trains only have one tie-down spot per train to secure a mobility aid, the other scooter must be collapsed and put in the baggage compartment. Unfortunately, as the decision outlines, VIA has often failed to accommodate our clients by transporting both scooters. VIA’s failure to facilitate the transportation of both scooters has meant our clients have had to travel on separate trains, collapse and store their own scooter because VIA staff refuse to do so, and have risked rendering the stowed mobility aid inoperable (which has occurred) as a result of inadequate space for storage.

The CTA determined that VIA’s conduct presents undue obstacles for our clients’ mobility. The decision recognized that “VIA refers to undue hardship in terms of costs and operation, but does not explain the extent of these constraints and their impact on the company”. While the CTA’s findings are supportive of our clients’ goals, the orders arising from the decision are weak.

The CTA ordered VIA to make improvements to its existing policy regarding the transportation of mobility aids and disclose the feasibility study report by May 2017. However, the decision also offers VIA a second chance to argue its undue hardship defence. “If VIA chooses to make a claim of undue hardship with respect to reviewing its Policy, it must do so by March 15, 2017”.

Our clients had one opportunity to present their case; so did VIA. The CTA determined that VIA failed to provide sufficient evidence to support its undue hardship defence. This should end the matter. Instead, the CTA’s decision allows VIA a second chance to argue its case.

In a previous case, Cheung v WestJet Decision No. 324-AT-A-2015 (link) the Agency found the airline’s failure to apply a “1 person, 1 fare policy” to its international flights, constituted a barrier to the mobility of persons with disabilities. So far so good. The Agency then went on to indicate that because it lacked the evidence necessary to decide whether removing the barrier would case WestJet undue hardship, it dismissed Ms. Cheung’s application. Since it was WestJet’s responsibility to prove undue hardship, the outcome should have been the reverse. To further confuse matters, the Agency went on to say that the case was systemic and it could not initiate a systemic case itself, as if this in some way justified the decision.

Giving VIA Rail a second kick at the undue hardship can is not as an egregious outcome as the dismissal in Cheung. It nevertheless is unfair and impairs access to justice for individuals of modest means relative to VIA Rail which is a crown corporation.

Further, since the CTA refused our clients’ request that the feasibility study report be disclosed sooner so that the CTA could consider the report in its decision, our clients were forced to pursue this report in other ways. This has led to them being forced to file a review in the Federal Court regarding their access to information request for VIA to disclose this report. VIA has consistently refused to disclose the report and as a result the issue is ongoing pending VIA’s decision to fight this matter further.

While our clients are pleased to have received this decision, they are wary that VIA has been granted a second opportunity to defend itself. Despite this, their commitment to the case remains, and they will continue to fight for a just resolution.