National Transportation Access for People with Disabilities: Moving Backwards

A Transportation Update
27 October 2005

Access in Canada declines

Accessibility standards are a thing of the past for Canada's federal transport system. Voluntary codes of practice are the Canadian way. The result: travel denied.

The Current Situation

Wheelchair users in Gander, NFLD must drive to St. John's to take planes large enough to transport their wheelchairs. Small planes, in particular Air Canada's CRJ, have been widely deployed and some wheelchairs cannot be stored in the cargo hold. MP Steven Fletcher leaves his wheelchair behind when flying direct from Winnipeg to Ottawa on Air Canada.

A deaf/blind woman was required to travel with an attendant. The right to self determination established years ago is lost.

A guide dog user was refused transport because the carrier wanted a certificate showing her dog was trained by an accredited school.

Each year, travelers with disabilities bring many complaints about barriers to the Canadian Transportation Agency (CTA). The same problems (i.e. poorly trained staff) keep re-occurring and travelers with disabilities continue to lodge complaints. The CTA has not been able to implement system-wide solutions to on-going problems. It has not demonstrated the capacity to remedy systemic discrimination. As a result, disability rights are being trampled. The Canadian Human Rights Commission is not an option for these complaints.

Canada's Shame

Once a world leader in accessibility, Canada should be ashamed its access levels fall below other developed countries. CCD can see no practical option other than abandoning the current approach, which is an abject failure. CCD seeks the adoption of the US regulatory accessibility model and utilization of US Access Board guidelines and expertise. This would see either the Department of Justice or Transport Canada equipped, legislatively and financially, to act in a prosecutorial role as part of an enforcement mechanism.

A national disgrace

• Air carriers eliminate the attendant airfare discount except on full fare tickets.
• Access does not have the force of law, instead "voluntary codes of practice" govern access in Canada.
• Transportation access is improving in other developed countries.

Broken Promises

In April 2000, the Federal Government gave VIA $400 million to purchase new trains. At a meeting of the Advisory Committee on Accessible Transportation (ACAT) the Minister Promised that improved services would be accessible.

A previous ACAT member recalls, "The Minister said Cabinet would not release one dollar until they were assured that VIA would comply with access requirements."

In the end, VIA purchased inaccessible cars even though the Federal Government was paying 100% of the cost. VIA ignored the Minister and the Voluntary Code and put inaccessible cars into service.

Six years later-the issue is still tied up in the courts. The inaccessible trains are in operation.

These cars could not have gone into operation in the United States, Britain or Europe, because they did not meet these countries' accessibility requirements.

Do Voluntary Access Codes Work? No!

The CTA has a voluntary access Code for rail. VIA's first opportunity to purchase trains in decades offered an opportunity to evaluate the voluntary approach. In 1998, VIA promised to abide by the Code. In 2000, VIA purchased inaccessible trains. Since then, CCD has been waging a legal battle to require VIA to conform to the Rail Code. Voluntary codes offer no real protection and therefore are inadequate to move Canada toward the goal of full access. CCD continues to call for access regulations.

Access to Canadian Human Rights Commission Denied

People with disabilities must take their access complaints to the CTA. The Agency has not demonstrated an ability to help people with disabilities fight powerful airlines or railways or to provide real remedies to systemic discrimination. Systemic discrimination is consequently increasingly unchecked. In 1996, the Air Transportation Association refused to comply with CTA's decision that carriers should fully accommodate travelers with disabilities needing additional seats. (Buchholz decision) This was accessibility's defining moment. Carriers began to re-erect barriers for travelers with disabilities.

The Subcommittee on the Status of Persons with Disabilities recommended that, "…the Minister of Transport immediately order an independent study of the comparative advantages of the regulatory and voluntary approaches to improving accessibility for persons with disabilities to modes of transportation under federal jurisdiction. The parameters of this study should be determined by the Minister's Advisory Committee and presented to the Subcommittee on the Status of Persons with Disabilities." (Accessibility for All", Recommendation 7, June 2005, p. 10.)

Advisory Committee on Accessible Transportation (ACAT)

In November 2004, CCD withdrew from ACAT due to concerns over lack of action on transportation access issues. CCD informed the Minister of the need for:

• Regulation,
• Increased support for the accessible transportation unit,
• A new policy on transportation access of Canadians with disabilities.

In June 2005, the Minister of Transportation arbitrarily ended disability organization membership on ACAT but industry still names its representatives. Now, the Minister appoints individuals with disabilities to ACAT. This creates an uneven playing field: individuals without an infrastructure behind them will be squaring off against well-resourced industry representatives, making the business case against access. We believe the access agenda will suffer as a result of this decision. Why was this change made? The only reason we can think of is the Minister was displeased with the strong arguments for accessibility put forward by disability rights organizations.

ADA Success Story

US trains are compliant with ADA access requirements.

American airports and airplanes are world leaders in accessibility, and because of their influence on world markets, American standards of aircraft design are becoming international standards.

Americans with disabilities applaud the ADA's outcomes.

The high profile transportation advocacy group ADAPT now focuses on long term care issues, viewing the transportation issue won.

UK's Disability Discrimination Act (1995)

The Mobility and Inclusion Unit of the UK Department of Transport oversees regulation for access. Before vehicles go into service in the UK, they require a license from the Inclusion Unit.

VIA's inaccessible cars were originally destined for the UK. When the manufacturer sought a license to operate the trains on British rails, it was refused.

Canadian travelers with disabilities wish that Canada had a body with the power to refuse to license inaccessible transportation equipment that carriers seek to put into service in this country.

"By replacing accessible planes with inaccessible ones, carriers are saying travelers using wheelchairs can't fly on certain routes. This is blatant discrimination."

CCD's Record

CCD is Canada's national cross-disability organization. CCD has shown leadership on transportation accessibility including:

• Expert testimony in the Clariss Kelly v. VIA Rail case decided by Canadian Transportation Commission 1979.
• Participating in the Roadcrusier project which made accessible intercity buses a reality in Canada.
• Expert testimony on accessibility to the Parliamentary Committee on the Status of the Disabled and the Handicapped lead to important recommendations concerning transportation in the Obstacles Report.
• Consulted by Liberal Transport Minister during the establishment of the National Policy on Accessible Transportation in 1981.
• Participated on research and development projects with the Transportation Development Center.
• Consulted by Conservative government in the development of the National (now Canada) Transportation Act 1987.
• Co-chaired the Ministerial Advisory Committee on Accessible Transportation.
• Published Moving Backwards: Canada's State of Transportation Accessibility in an International Context (2005)

See: www.ccdonline.ca. (This brochure is based on that report.)

US Regulatory Model

Title II: Public Transportation of the ADA required the provision of accessible public transport. Regulations passed pursuant to the ADA govern the purchase of new or used vehicles and the reconditioning of old ones. In addition to very detailed regulations, there are legally mandated Manuals on Transportation Design produced by the Architectural and Transportation Barriers Board that describe an accessible vehicle. The Public Transportation sections of Title II are enforceable either through private law suits or by registering a complaint with the Office of Civil Rights in the Federal Transit Administration of the Department of Transportation (DOT). Privately operated transportation [e.g. trains and intercity bus] is covered under Title III. Complaints of Title III violations may be filed with the Department of Justice (DOJ) Civil Rights Division. The Department is authorized to bring a law suit where there is a pattern of discrimination. Private actions are rare. This reflects well on the ability of counsel at DOT and DOJ to represent the interests of people with disabilities effectively. Due to their regulatory framework, America has better access than Canada.