SPEAKING NOTES FOR TRANSPORTATION ROUNDTABLE

November 17, 2016

Introduction

The Council of Canadians with Disabilities (CCD) is a national human rights organization of people with disabilities that works for an accessible and inclusive Canada.  (Please see appendix for highlights of CCD's work on accessible transportation.) 

During this consultation, CCD will identify measures that could advance barrier removal in the federally regulated transportation system. 

Legislative Context

CCD notes that disability is included as a prohibited ground of discrimination under the Canadian Human Rights Act and Canada’s Charter of Rights and Freedoms.  The Canada Transportation Act provides the Canadian Transportation Agency the authority to address undue obstacles to the mobility of persons with disabilities.  In addition, Canada has ratified the Convention on the Rights of Persons with Disabilities (CRPD) and in doing so has agreed to follow a human rights approach to resolve issues of concern to Canadians with disabilities.  The articles of the Convention that relate directly to transportation are as follows:

• Article 2, Definitions, particularly the definition of universal design ("Universal design means the design of products, environments, programmes and services to be useable by all people, to the greatest extent possible, without the need for adaptation or specialized design.");
• Article 3, General Principles;
• Article 4, General Obligations; and
• Article 9, Accessibility.

Any new accessibility and inclusion legislation must not undermine rights afforded in any existing legislation.  To ensure that there is no undermining of existing rights, a new act should include an interpretation section that references the CRPD and confirms the act does not undermine the Charter of Rights and Freedoms and human rights protections.

A new act should include a robust declaration of purpose, including broad goals (i.e. inclusion, participation, dignity) and procedural goals (i.e. accountability [public reporting], barrier removal, consumer participation, universal design).  For the achievement of inclusive and accessible transportation, universal design is a priority for inclusion in any statement of goals.

What are the key barriers and challenges with respect to accessibility in this area (transportation)?

In brief, some key barriers to transportation accessibility:

• The Scope of the CTA's Authority
• The Approach Taken to Regulatory Reform
• Principles of Universal Design Not Followed
  • Federal government not using infrastructure funding to reinforce compliance with universal design
  • Carriers not following principles of universal design
• Inadequate Customer Service & Incomplete Bundle of Services
  • Lack of staff training
  • Lack of staff
  • Lack of services necessary to provide a seamless transportation experience
• Communication Barriers

The Scope of the CTA's Authority

The Canadian Transportation Agency (CTA) cannot act on its own to enforce regulations and codes of practice.  For example, CCD had to make an application to the CTA about the inaccessible Renaissance passenger rail cars, before the Agency could investigate.  As the applicant, CCD carried the prosecutorial function, a challenging role for a community organization pitted against a well-resourced carrier (Baker, 2006, p. 80).  The CTA has not provided public interest costs in advance to groups litigating cases with systemic implications (Baker, 2006, p. 81).

The Approach Taken to Regulatory Reform

There is currently a regulatory reform initiative underway at the Canadian Transportation Agency. The goals of the Regulatory Modernization Initiative are:

• Ensuring that industry’s obligations are clear, predictable, and relevant to a range of existing and emerging business practices.
• Ensuring that the demands associated with compliance are only as high as necessary to achieve the regulations’ purposes.
• Facilitating the efficient and effective identification and correction of instances of non-compliance.

CCD is concerned that the goals are too focused on efficiency.  CCD proposes that the first goal should be ensuring that there are no undue obstacles in the federally regulated transportation system to the mobility of people with disabilities.

Principles of Universal Design Not Followed

The federal government does not use its infrastructure spending to ensure that accessibility is built-in when new infrastructure is created or existing infrastructure is upgraded. 

Carriers do not adhere to the principles of universal design.  Travelers with disabilities encounter barriers when seeking to use a range of services.  For example, currently, Canadian air carriers have in service smaller aircraft that are unable to carry mobility aids, as these aids do not fit through the door to the cargo hold¹.  Kiosks, which are used for the purchase of tickets or for printing boarding passes and tagging luggage, lack essential accessibility features such as way-finding cues so that people with disabilities can locate these devices and audio output/voice command capacity.

Inadequate Customer Service & Incomplete Bundle of Services

People with disabilities encounter barriers when seeking assistance from carrier staff (two problematic areas:  staff training and supply of staff) and the services on offer are inadequate for ensuring an accessible and inclusive travel experience.

Staff Training – It is not an uncommon experience for travelers with disabilities to encounter carrier staff who do not have the skill set necessary to provide safe, respectful, inclusive and accessible service.  An outcome can be injury to passengers with disabilities and damaged mobility aids.

Supply of Staff – Carrier staff provide necessary assistance to travelers with disabilities.  Carriers have adopted a model of service that is less reliant on carrier staff providing services customers, where travelers use automated kiosks and web-based services. Self-serve terminals and websites are not an adequate replacement for the assistance provided by staff.  For example, travelers with various disabilities identify unstaffed rail stations create barriers to the purchase of tickets and for boarding and deboarding a train, especially in an unfamiliar station. ²

Lack of Services Necessary to Provide a Seamless Transportation Experience for Travelers with Disabilities – Carriers' services need to be fully accessible.  In order to achieve inclusive travel, there also needs to be an envelope of services that meet disability-specific needs.  Some examples of service gaps that need to be filled:

Assistance to next point of departure – When the flight itinerary of a traveler with a disability includes multiple departures, carriers should be required to provide assistance to the passenger to connect with the carrier at the next point of departure, even if it is in a different terminal of the same airport.

Curbside meeting and assistance – All modes of transportation (air, rail, bus and marine) should be required to provide the service of meeting travelers with disabilities at the curbside and providing them with assistance from that point.  This type of service should be available at terminals/stations/stops.  As carriers are expecting passengers to book in advance, transportation providers will have the information they need to provide this service and information and communication technology will make it easier to deliver this service.

Relief areas for service animals – Terminals should be required to provide convenient relief areas, located both inside and outside secure zones, for service animals.  This service is particularly important for passengers transferring from one aircraft to another.  On ferries, there should be a relief station for service animals located on the upper decks in an accessible area remote from cars, as vehicle emissions can inhibit a service animal's willingness to relieve itself in a designated area. 

Communication among carriers – There is a lack of communication among modes of transportation so that travelers with disabilities can have a seamless transportation experience.  For example, if a passenger with a disability arrives by bus to a ferry, the bus driver should inform the ferry that a passenger with a disability has arrived and requires assistance. While there are operational considerations, such as cell phone usage by drivers, these are resolvable issues.  The modes of transportation need to be pushed to communicate with each for the purpose of ensuring that people with disabilities do not encounter obstacles due to communication breakdowns.

Communication Barriers

Travelers with disabilities continue to face obstacles when accessing information.  There is a lack of:  plain language; information provided in visual format, such as ASL/QSL videos; fully accessible websites; captioning of on-board entertainment; fully accessible on-board entertainment units, kiosks that can be used by people with various disabilities, to name a few examples.  Communication access means that people with disabilities can avail themselves of the same services as other travelers.  Take for example, carriers' websites.  Travelers with disabilities, like other customers, should be able to book a trip online, without having to call the carrier.  Kiosks, which are used for the purchase of tickets or for printing boarding passes and tagging luggage, should follow the principles of universal design so that they are fully accessible and usable by people with various disabilities.  Examples of essential accessibility features for these devices are way-finding cues so that people with disabilities can locate kiosks and audio output/voice command capacity.

What are the current gaps in the legal and policy environment?

Lack of Accessibility Regulations

In 2006, CCD published "Moving Backwards: Canada's State of Transportation Accessibility in an International Context" by David Baker.  The report assessed that Canada was no longer a leader in the provision of accessible transportation, because, unlike other comparable countries, Canada relies on voluntary codes of practice instead of binding accessibility regulations. In 1995, the federal government turned away from accessibility regulations (Baker, 2006, p.27). The VIA Rail purchase of inaccessible Renaissance demonstrated how poorly voluntary codes of practice uphold accessibility.Voluntary codes of practice do not have the teeth needed to prevent barriers. 

One-Person-One-Fare

For domestic service the CTA ordered Air Canada and WestJet to implement a One-Person-One-Fare Policy, which means they may not charge more than one fare for persons with disabilities who are accompanied by an attendant assisting with personal care or safety or for persons with disabilities who need additional seating for themselves (CTA Decision No. 6-AT-A-2008).  The One-Person-One Fare Policy decision is based upon the principles of equal access to transportation services for persons with disabilities and the CTA's mandate to remove "undue obstacles" to the mobility of persons with disabilities.  While CTA Decision No. 6-AT-A-2008 was an important first step toward providing a systemic solution to the fares and charges paid by people who require additional seating, it is not a complete solution.  Regrettably, the CTA Decision No. 6-AT-A-2008 applied only by Air Canada and WestJet; other domestic carriers are not bound by it. Regulation would be a way to ensure that travelers with disabilities have the benefit of One-Person-One-Fare, regardless of carrier or destination.   This would forestall any possible future erosion of One-Person-One-Fare, resulting from claims by WestJet or Air Canada that they are being treated unfairly because they, unlike their competitors, are required to follow One-Person-One-Fare.

Lack of Effective Use of Infrastructure Funding and Government Subsidies

The Federal Government is not using its spending power to promote accessibility and universal design.  To ensure that accessibility becomes a priority, CCD urges the Federal Government to attach specific access requirement to all infrastructure spending.  To ensure compliance with accessibility requirements, accountability measures need to be attached to key milestones in a project's development. For example, at the request for proposal stage, applicants would be required to elaborate on plans for universal accessibility.  This component would be given significant weight in the evaluation process.  A sign-off clause regarding universal accessibility for persons with disabilities could be required from all contractors receiving funding from an infrastructure project. 

Requiring infrastructure projects to be universally accessible to persons with disabilities is consistent with Canadian law and there are examples of previous governments requiring access in infrastructure projects.  Section 15 of the Charter of Rights and Freedoms, federal and provincial human rights statutes, and provincial accessibility legislation support accessibility and inclusion of persons with disabilities.  It is our understanding that the accessibility that is found in Ontario's regional GO Transit, TTC Toronto subway and campus Disability Access Centres was largely the result of accessibility requirements placed upon infrastructure projects by previous provincial governments in Ontario.

Companies such as Bombardier, which construct inaccessible aircraft, should not receive subsidies from the Canadian government.  Canadian tax dollars should not be used to support manufacturers who produce products that do not follow the principles of universal design.

What are the options for the Government of Canada to address these gaps, including any best practices or examples and ideas of leading actions?

Maintain CTA's Jurisdiction

CCD is not in favor of dismantling the CTA's jurisdiction.  The CTA's jurisdiction is strong and broad.  The problem has been with how the Act has been administered.

Enhance the CTA's Capacity

The Government of Canada should strengthen the authority of the CTA by empowering it to:

• Award robust corrective remedies for pain and suffering and any losses caused by discrimination in the transportation system;
• Grant interim injunctions related to the purchase of new equipment that would create new barriers;
• Issue prospective orders requiring carriers to pay the legal costs of persons with disabilities;
• Award public interest applicants public funding to proceed with systemic cases (Baker, 2006, 81).
• Award heavy fines to carriers to deter noncompliance with accessibility provisions (Baker, 2006, 81).
• On its own motion initiate applications concerning domestic and international carriers. 

Pathways: Connecting Canada's Transportation System to the World states, "As noted in Chapters 8–10 on the different modes, the Review is recommending that applications be restricted to persons, or their representatives, who have traveled and experienced an obstacle."  CCD is concerned that if this recommendation is implemented, that organizations, like CCD, would not be able to make an application to the Canadian Transportation Agency (CTA) in matters of public interest.  Complaints brought forward in the public interest have successfully eliminated undue obstacles to the mobility of persons with disabilities.  Organizations, such as CCD, should be able to have standing before the CTA in order to remedy undue obstacles to the mobility of travelers with disabilities.  This recommendation should be rejected.

Comprehensive Accessibility Regulations

CCD is in favor of comprehensive accessibility regulations.  CCD does not agree with lessening comprehensiveness by excluding certain providers or aircraft from the regulatory regime.  For example, to be comprehensive, regulations need to apply to air carriers' using aircraft with 30 or fewer passenger seats, One-Person-One-Fare would be extended to include all carriers and both foreign and domestic flights, foreign carriers, commuter and tourist rail.  David Baker provides some advice on best practices, "International experience demonstrates that all jurisdictions in Europe and the United States have arrived at the conclusion that mandatory regulations, based on the American model, are the only way to resolutely, equitably and efficiently introduce full accessibility over a reasonable period of time (Baker, 2006, 77)".

Application of Canadian Requirements to International Carriers - It is CCD's view that flights that originate in Canada should follow Canadian requirements on access and that the CTA's regulations should be applied to foreign carriers.  Waivers can be issued where there is a conflict between a Canadian regulation and a regulation followed by an international carrier when it is not possible to follow both.  CCD recommends that Canadian passengers be able to challenge waivers and carriers should have to prove that it is not possible for them to implement both regulations.

Reinforcing Human Rights Decisions

As a result of a human rights complaint, Air Canada's in-flight entertainment units will be accessible to persons with vision impairment but the decision does not affect other carriers.  The CTA should be working hand-in-hand with the Canadian Human Rights Commission (CHRC) to extend the impact of this and other CHRC decisions to other carriers.  On its own motion, the CTA should require Canadian carriers to show cause that they cannot remedy a barrier that another carrier has been required to remedy as the result of a human rights decision.  Such an approach would achieve more systemic solutions. 

Improve Level of Information about How Barriers Are Being Remedied

Currently, many settlements have confidentiality agreements.  CCD recommends that confidentiality agreements be abolished so that all settlements resolving undue obstacles to mobility are made public and published on a website, where anyone can review decisions.  By making settlements public, information about how obstacles have been resolved would be available to people with disabilities who are seeking to have barriers addressed through the complaints process.  Having the full decisions made public, once they are rendered, informs other carriers about what is, and is not, acceptable and what is expected of them with respect to removing barriers to access for travellers with disabilities. 

Using Federal Spending to Require Accessibility

CCD urges the Federal Government to attach specific access requirement to all government procurement activities, infrastructure spending and subsidies provided to industry. 

What are the implications or considerations of implementing any of these options?

Enhancing the CTA's capacity would deter non-compliance by carriers.

The availability of public interest funding would enhance the pace of barrier removal, as disability community would have the capacity to challenge systemic barriers to the mobility of persons with disabilities.

How do we move from theory to practice and implementation?

There is no need for study, regulatory impact analysis or consultation with stakeholders.  Our own Canadian experience has shown that voluntary codes do not work. The experience in other countries demonstrates mandatory regulations are necessary to achieve accessibility (Baker, 2006).

Endnotes

1. It is CCD's position that carriers must accommodate passengers with disabilities by providing sufficient space for the safe and dignified travel of persons with disabilities and their mobility aids, whether that is a wheelchair, a scooter or a service animal.  People with disabilities must be able to travel with the confidence that when they arrive at their destination that their mobility aid, whether it is a wheelchair, scooter or service animal, is functional.  As mobility aids are an extension of the person with a disability, the mobility aid must travel on the same aircraft as the passenger with a disability.  It is an undue obstacle to the mobility of persons with disabilities to expect passengers with disabilities to travel without their personal mobility aid and use another aid when they arrive at their destination.  Mobility aids are not one-size-fits-all; they are customized to meet the needs of a particular user.  Using a mobility aid that was not customized to the needs of the user could cause a serious injury to the individual.  

2. Staff at rail stations provides necessary information and assistance to travelers with vision impairment. If a person with vision impairment disembarks at an unstaffed station, he/she may be in the situation of being completely alone on the platform and without anyone to assist him/her find the route to the exit, a connecting vehicle, or other features of the station.  Station staff provides necessary information and assistance to people with intellectual disabilities and anxiety disabilities who may need to receive clarification from staff regarding departure and arrival times, the point of embarkation, procedures relating to luggage, the availability of food, seating and so on.  Unstaffed stations are a safety concern, as people with disabilities can be victimized by perpetrators of bullying, hate crimes, abuse, and violence, and this is a particular concern for women and girls with disabilities.

References

Baker, David. 2006. Moving Backwards: Canada's State of Transportation Accessibility in An International Context. Winnipeg: Council of Canadians with Disabilities.

Appendix

In every decade since the 1970s, CCD has played a crucial role in advancing the status of Canadians with disabilities.  CCD has played the role of:

• CONVENOR - bringing together the disability community, governments and others to remove barriers and create greater inclusion;
• INNOVATOR – informing and facilitating understanding of access and inclusion as it has evolved over the decades; and
• CONSENSUS BUILDER - developing a shared vision that facilitates progress and change.

As a result, CCD has demonstrated leadership on accessible and inclusive transportation, including:

• Providing expert testimony in the Clariss Kelly v. VIA Rail case decided by Canadian Transportation Commission in 1979;
• Participating in the Roadcrusier project which made accessible intercity buses a reality in Canada;
• Providing expert testimony on accessibility to the Parliamentary Committee on the Status of the Disabled and the Handicapped, which led to important recommendations concerning transportation in the Obstacles Report;
• Being consulted by the Transport Minister during the development of the National Policy on Accessible Transportation in 1981;
• Participating in research and development projects with the Transportation Development Center;
• Being consulted by the Government of Canada in the development of the National (now Canada) Transportation Act 1987;
• Co-chairing the Ministerial Advisory Committee on Accessible Transportation;
• Publishing Moving Backwards: Canada's State of Transportation Accessibility in an International Context (2005);
• Removing undue obstacles to mobility through litigation: CCD v. VIA Rail and CCD v. Air Canada & WestJet;
• Initiating a conversation in the disability community about the need for the Minister of Transport to develop accessibility regulations for the federally regulated modes of transportation and 45 disability organizations added their voices to CCD's call for regulation.