Chronology of Events in CCD's Via Rail Case

14 December 2000—CCD was informed that VIA had purchased the rolling stock on 1 December. CCD amended its CTA application.

15 December 2000—VIA requested that if an interim order was granted to CCD by CTA that CCD be required to put up a security equivalent to the purchase price for the rail cars.

18 December 2000—CTA ordered VIA to provide its interim plans to make the Nightstock cars accessible to persons with disabilities.

3 January 2001—In a letter, VIA stated that before CTA can make an interim ruling it must first make a "finding that there exists an undue obstacle to the mobility of persons with disabilities." VIA also stated, "There is no existing plan to make the rolling stock accessible because the rolling stock is already accessible for persons with disabilities.

9 January 2001—The Advisory Committee on Accessible Transportation met and the Minister indicated that he believes VIA's claims that the Nightstock cars can be retrofitted for access. Minister Collenette stated, "When I go to Holt Renfrew or Harry Rosen and I see a deal, obviously I don't make a judgment without trying it on, but I see if it can be modified for my unique characteristics. And that is what was done here. This was the deal, the evaluation was made by VIA, and in fact our officials were involved on the safety side. Of the testing and accessibility issues, we've been assured that the objectives of the Code have been met and let's see how it works out."

15 January 2001—Joe Comartin NDP MP for Windsor-St Clair publicly called for an investigation into the deal between VIA and the Nightstock vendor. "Serious financial, safety and accessibility concerns have been raised about the recent VIA deal. The Canadian public deserves answers," Mr. Comartin stated. "Not only will the purchase fail to result in the cost savings that both VIA and the Transport Department have suggested, but the new cars fall short of even the minimum North American safety standards, and are not accessible to people with disabilities," Mr. Comartin continued. Comartin wrote to Transport Minister, the Hon. David Collenette, asking him to investigate the issues surrounding the deal. "The federal government must ensure that this deal was conducted in an above the board manner, and that the safety and accessibility concerns of Canadians are addressed," Mr. Comartin concluded.

29 January 2001—Svend Robinson raised concerns about the accessibility of the Nightstock cars in a letter to the Hon. David Collenette.

1 February 2001—The Globe and Mail covered the VIA issue. It statedd, "VIA has refused a request by federal regulators to hold off retrofitting its controversial new railway cars until it can be determined if they are suitable for disabled passengers. The Crown-owned railway said yesterday that the quasi-judicial Canadian Transportation Agency has no power to interfere with its business plans by overseeing the process by which 139 British built rail cars are brought into service. The Council of Canadians with Disabilities is seeking to overturn the untendered purchase. The group says the cars do not meet federal guidelines for accessibility or safety." by Murray Campbell.

2 February 2001—Bev Desjarlais, NDP Transportation Critic, wrote to the Minister of Transportation raising concerns about the accessibility of the Nightstock cars.

22 February 2001—The CTA took some action on CCD's complaint regarding VIA Rail's untendered purchase of 139 rail cars that are inaccessible for persons with disabilities. The CTA gave VIA a day to send the Agency its accessibility plans. VIA had challenged the CTA's ability to rule on the inaccessible Nightstock rail cars because they were not yet in service in Canada. The CTA addressed this saying, "The Agency is of the opinion that section 172 in conjunction with paragraph 170(1)(a) of the CTA clearly contemplates the Agency making an undue obstacle determination in advance of rail equipment being put into service. Contrary to VIA's assertion that the "Agency's adjudicative jurisdiction should await a proper factual foundation based upon individual complaints arising in existing circumstances" the Agency is of the view that there is nothing in either paragraph 170(a) or section of 172 of the CTA that would suggest that this narrow interpretation should be adopted. In fact, to adopt a narrow interpretation would severely limit the Agency's execution of its mandate to eliminate undue obstacles. The Interpretation Act states that statues are deemed to be remedial and are thus to be give such fair, large and liberal interpretation as will best ensure that their objects are attained." VIA decided to challenge the jurisdiction issue in the Federal Court of Appeal.

3 April 2001—VIA Rail approached the Federal Court of Appeal to challenge CTA's decision, which called upon VIA to provide the agency with its retrofit plans.

24 April 2001—VIA Rail appealed the CTA's 3 April 2001 decision to continue with its investigation of CCD's complaint. It had delayed rendering a final decision because VIA denied it access to the cars and to other information, it required for its investigation. This meant the 120-day period provided in the Act had passed.

1 May 2001—The Federal Court of Appeal dismissed VIA's initial application for leave to appeal the CTA's decision that it had the jurisdiction to review the proposed design for the Nightstock train cars.

3 May 2001—The Federal Court of Appeal amended its initial order to include an award of costs to CCD.

9 May 2001—The Chief Justice of the Federal Court of Canada refused VIA's request to have its motion to stay the CTA's interim order which was preventing it from retrofitting the trains heard in the Federal Court of Appeal in an oral hearing. CCD had opposed VIA's request because it would have made the proceedings more expensive.

14 May 2001—VIA appeared in the Federal Court Trial Division arguing that it would suffer irreparable harm if it remains bound by the CTA's interim order, which is designed to prevent VIA from retrofitting the cars and making them un-returnable without payment of a substantial penalty.

18 May 2001—MacKay J. agreed with all the parties that the CTA should not complete its hearings until after the Federal Court of Appeal, but refused VIA's request for a stay of the CTA's interim order saying that the status quo should be maintained.

24 May 2001—CCD submitted its written cross-examination of the VIA Vice-President responsible for the purchase of these trains. He has 30 days within which to answer.

24 May 2001—The following appeared in the Thunder Bay Chronicle Journal: "Bombardier and the Thunder Bay Port Authority will benefit from VIA Rail's purchase of 139 European rail cars, but when the rail service will return to Northwestern Ontario is still unknown. Yesterday VIA Rail and Bombardier executives showed off 15 green VIA Rail cars that came to Thunder Bay from the United Kingdom. They arrived on Wednesday by ship. Another 124 are expected to arrive in the next few months. Bombardier will refurbish and modify the cars at its plant in Thunder Bay. Ron Dysevick, with Bombardier, said the contract is worth $9.8 million. The company is also working on another contract with VIA," he said. Parts for the cars have already arrived at the port and are being stored in its warehouse, Thunder Bay Harbor Commission chairperson Tom Inglis said. More parts are expected to arrive and take up warehouse space. MP Joe Comuzzi (L-Thunder Bay Superior North) credited federal Transport Minister David Collenette for having the foresight to buy the cars, which were built for the English-French Chunnel, at a reduced price. Each car is worth 1.2 million pounds or approximately $3 million. The savings allowed VIA Rail to refurbish the cars, some of which are still outfitted for European passengers, Comuzzi said. These cars will be used to expand the fleets in eastern Canada. The Quebec City-Windsor VIA line currently has 130 cars. The Montreal-Halifax line has 80 cars. Some of the Montreal-Halifax cars now being used will be moved to VIA's line in Western Canada. The purchase of the new equipment was announced last December by Collenette as part of the federal government's $401.9 million investment to revitalize passenger rail in Canada. "It won't be too long before the people in Thunder Bay will be enjoying rides in this car," MP Stan Dromisky (L-Thunder Bay-Superior North) said yesterday pointing to the rail cars. He said that Thunder Bay is a lot closer to bringing VIA back to Thunder Bay now than it was a year ago." ("VIA Rail's European Train Cars In City for Refurbishing," by Ward Holland in The Chronicle Journal.) CCD pointed out that it is nondisabled people who will be enjoying the cars described in this article.

21 September 2001—CCD representatives, Lucie Lemieux-Brassard, Ron Ross and David Baker, legal counsel, Ron Wollam, consultant, and Glen Fisher, consultant, toured VIA's Nightstock/Renaissance rail cars. Also in attendance were representatives from the CTA and VIA. The tour demonstrated the inaccessibility of the cars.

4 December 2001—CCD held a press conference in Toronto to commemorate the one-year anniversary of its CTA complaint against VIA rail. Lucie Lemieux-Brassard traveled by train to Toronto and was met at the train station by a CBC reporter and camera crew. CCD made the following points to the media: For people with disabilities the Nightstock cars represent a bad trip; a voyage back in history, to a period before 1980, when persons with disabilities won their right to ride VIA's trains. One example of problems with these cars is door width ( US Standard 32", European Standard 33", Nightstock Trains 28") The CTA standard wheelchair size is 29.5" and would not get through the door into the Nightstock train's accessible suite"."

February 2002—CCD submitted its final written brief on the inaccessible VIA train cars to the CTA. By this point in time, VIA had indicated that it was putting some of the inaccessible cars into service in March of 2002. CCD was publicly asking the following, "After 14 months of a complaint process, the cars are going into service. Is this justice? It is not justice from CCD's standpoint."

8 April 2002—Pat Danforth, Sarah Goodwin and David Baker appeared before the CTA in Toronto for a hearing on CCD's complaint against VIA Rail, concerning VIA's purchase of inaccessible rail cars. CCD's submission focused on the major obstacles these new train cars present for people with disabilities. It was explained why CCD finds these obstacles "undue" and how the new trains were inferior to VIA's old rolling stock.

4 December 2002—CCD marked the second anniversary of its CTA complaint regarding VIA inaccessible Renaissance cars.

27 March 2003—The CTA made an unprecedented ruling on CCD's complaint about the inaccessibility of VIA's Renaissance cars. The Agency ruled that the Renaissance cars do not meet the Agency's voluntary Rail Code and present serious obstacles to the mobility of Canadians with disabilities. The Agency gave VIA 60 days to address the question of costs. CCD then has 30 days to respond to VIA's submission.

August 2003—CCD made its final submission to the CTA regarding its complaint against VIA Rail.

23 October 2003—The CTA released its milestone ruling regarding CCD's complaint regarding VIA Rail's purchase of inaccessible rail cars. CTA gave a very clear message to the providers of transportation services: transportation access for Canadians with disabilities cannot be ignored. In its decision the CTA confirmed that VIA's Renaissance cars do not meet the Agency's voluntary code for rail car accessibility and ordered the railway to make substantive modifications which will remove obstacles to the mobility of travelers with disabilities.

November 2003—CCD learned that VIA would appeal the CTA ruling.

3 December 2003—Pat Danforth, Chairperson of CCD's Transportation Committee, took part in a press conference held to commemorate the UN's International Day of Persons with Disabilities. CCD used the event to highlight VIA's decision to appeal the CTA ruling.

March 2004—CCD was informed that the Federal Court of Appeal would hear VIA Rail's appeal of the CTA decision regarding CCD's complaint with regard to VIA Rail's inaccessible Renaissance cars.

3 June 2004—CTA awarded CCD the CTA Centennial Commemorative Award, acknowledging CCD's on-going contribution to Canada's national transportation system.

2 March 2005—The Federal Court of Appeal released its decision in the VIA rail case. The decision did not dispute the fact that Renaissance cars are inaccessible. The Court of Appeal allowed VIA's appeal because the CTA did not look at the entire VIA network. The Court of Appeal took the approach that access was being achieve if there were some other rail options available to persons with disabilities.

April 2005—CCD decided to appeal the Federal Court's decision to the Supreme Court of Canada.

Commentary

THE ENVIRONMENT—The Charter of Rights and Freedoms guarantees equality rights to persons with disabilities and human rights legislation guarantees access to goods and services. The disability rights movement has been educating both government and the transportation industry about the need for accessibility to the transportation system either by the retrofit of old equipment or by the acquisition of new equipment that meet the principles of universal design. Canadian manufacturer Bombardier has responded to the demands of the ADA and now manufacturers accessible rail cars that are purchased are by AMTRAK. With its windfall from the Federal Government, VIA had the opportunity to move Canada's passenger rail system in a direction that would begin to meet the demands of universal design. Universal design makes systems useable by people with a wide range of functional characteristics.

THE RESPONSE—VIA ignored this excellent opportunity to embrace universal design as an operating principle for the corporation. When given a windfall by the Federal Government, VIA, a crown corporation went outside of Canada and made an untendered deal on redundant European rail stock, totally ignoring the demands of the Charter of Rights and Freedoms and the Canadian Human Rights Act with regard to access. The consumer movement has had conflicting messages from government. On the one hand, the Minister of Transport, the Hon. David Collenette, has told the disability community that he has expressed the need for access to VIA; but on the other hand he has also told us to trust VIA to make the cars accessible after the purchase. Our collective experience with retrofitted rolling stock makes us uneasy about adopting this "wait and see" attitude.

When CCD heard from consumers who toured the Nightstock cars that these cars are less accessible than the cars currently on the tracks in Canada, CCD launched a complaint with the CTA with regard to VIA's purchase of the Nightstock equipment. Our objective was to prevent any deterioration in the level of accessibly that exists in the rail system. Canadians will have to live with this deal for many years.

VIA's actions toward the disability community concerning the Nightstock purchase have not been above board. In retrospect, we now realize that the consultation that was held with consumers about the Nightstock cars was only for show. The decision to buy the cars had already been made. VIA called CCD's complaint to CTA "premature", but it was later revealed that VIA had purchased the cars prior to CCD's complaint but had not yet gone public about the deal. VIA has used legal maneuverings and intimidation to challenge CCD at ever juncture on this case. Dissatisfied by the CTA's support for accessibility, VIA has challenged the CTA's decisions in the Federal Court. VIA's legal manoeuvering to avoid the demands of Canadian law is placing a heavy burden upon CCD's resources.

OUR ANALYSIS—Since the neo-conservative agenda took hold in Canada in the 80s, we have seen governments withdrawing from a rights agenda. For example, the Harris government abolished Employment Equity. We believe that other sectors in society, such as transportation, may be of the mindset that the mood of the country is such that they can increase profits by developing their services according to the needs of majoritarian interests. In the area of air travel, we are seeing airlines putting into service smaller planes, which are not regulated for access. Airports that were once serviced by accessible planes have lost that accessible service. The level of access has deteriorated in the air system. It is the role of CCD to challenge all who attempt to create barriers that impede the full and equal participation of people with disabilities. We believe that if encroachments on accessibility are not challenged, there will be further deterioration.