VIA Rail Factum

Court File No. A-238-04

FEDERAL COURT OF APPEAL

IN THE MATTER OF Sections 5, 28, 29, 170 and 172 of the Canada Transportation Act, S.C. 1996, c. 10

AND IN THE MATTER OF two decisions of the Canadian Transportation Agency, 175-AT-R-2003, dated March 27, 2003 and 620-AT-R-2003, dated October 29, 2003

BETWEEN:

VIA RAIL CANADA INC.

Appellant

- and -

COUNCIL OF CANADIANS WITH DISABILITIES

Respondent

- and -

CANADIAN TRANSPORTATION AGENCY

Respondent

RESPONDING MEMORANDUM OF FACT AND LAW
OF THE COUNCIL OF CANADIANS WITH DISABILITIES

OVERVIEW

1. Over three and a half years ago, the Council of Canadians with Disabilities ("CCD") brought an application to the Canadian Transportation Agency ("the Agency") requesting that the Agency inquire into the inaccessibility of the new Renaissance rail cars VIA Rail Inc. ("VIA") proposed to purchase, assemble/retrofit and bring into service.

2. The Agency's application process was unduly extended by VIA's consistent refusal to provide information to the Agency; its flagrant violation of Agency orders; and its two unsuccessful motions for leave to appeal to this Court, together with a motion to have the Agency found in contempt.

   Following final submissions by both VIA and CCD, the Agency rendered an interim decision on March 27, 2003, setting out its preliminary findings concerning whether the cars contained undue obstacles to the mobility of persons with disabilities, and giving VIA a further opportunity to provide evidence in support of its position that any obstacles found were not "undue". After providing VIA with specific direction of the additional evidence it felt would be relevant, and after receiving the evidence VIA chose to provide, the Agency rendered its final decision on October 29, 2003. The Agency found the new Renaissance rail cars posed 14 undue obstacles to persons with disabilities. In reaching its decision, the Agency scrupulously adhered to the contextual analysis prescribed by this Court in VIA Rail Canada Inc. and National Transportation Agency ["Lemonde"].

   VIA is appealing the preliminary and final decisions of the Agency. It relies upon: jurisdictional arguments on which it has previously been denied leave to appeal by this Court; factual issues upon which it has no right in law to appeal; and grounds connected to its own strategic attempts to starve the Agency of information that VIA now asserts was required by the Agency to render a valid decision.

   I. FACTS

   A. The Parties

3. CCD is the national voice of persons with disabilities in Canada. It is an umbrella organization of representatives from provincial disability groups across the country, as well as from major national disability organizations.

   CCD Application to the CTA (December 4, 2000) at 1 [Appeal Book, Vol. 1, Tab 8]

   Letter from Paul Young to Ms. Marie-Paul Scott, Q.C. (January 8, 2001) [Appeal Book, Vol. 2, Tab 19]

4. VIA is a crown corporation responsible for Canada's national passenger rail transportation.

   CCD Application to the CTA (December 4, 2000) at 1 [Appeal Book, Vol. 1, Tab 8]

   B. Background to Rail Accessibility within Canada

5. A generation ago no standards existed for wheelchair access within Canada and there were no legal obligations to accommodate persons with disabilities. People in wheelchairs were routinely excluded from buildings and transportation systems. Exclusion meant wheelchair users were unable to get jobs or live independently in the community.

   CCD Submissions (January 31, 2002) [Appeal Book, Vol. 3, Tab 131]

6. In the late 1960's an idea was conceived to measure the space required by people in their wheelchairs: how they moved, turned around and transferred to use washrooms. Standards based on these measures were adopted internationally. In Canada the standards can be found in Canadian Standards Association Standard CAN/CSA-B651-95 Barrier-Free Design, ("CSA Standards"). They prescribe a standard wheelchair size ("footprint") as well as corresponding door and aisle widths, turning diameters and washrooms.

   Report of David Harding, Motion Specialties [Appeal Book Vol. 6, Tab 152 at 2260-2266]

   Expert Report of Laurie Ringaert MSc, BMR-OT [Appeal Book, Vol. 6, Tab 152 at 2253-2259]

7. Before there were standards or guidelines of accessibility in modes of transportation under federal jurisdiction, VIA publicly committed itself to abide by standards of accessibility comparable to those of the CSA. Based on these standards VIA retrofitted their aging coach cars, which had been purchased before there were CSA Standards. The retrofitted VIA coaches had accessible washrooms, tie-downs and turning areas, but external doors posed structural limitations and fell below VIA standards. Across VIA's entire "network" of "existing" rail cars, there was not a single "wheelchair accessible coach car" or "wheelchair accessible sleeping car".

   CTA Decision 175-AT-R-2003 at 45 [Appeal Book, Vol. 1, Tab 2]

   Wheelchairs Rev. February 4, 2000 found in VIA Submissions, (February 15, 2004) [Appeal Book Vol. 4, Tab 140-17 at 1682]

8. In 1987, the National Transportation Act, 1987 was passed, which included provision to enact accessibility regulations and to allow for individual applications to enforce the regulations, or consider whether "undue obstacles to the mobility of persons with disabilities" existed in relation to matters which could have been regulated. The current sections have not changed in the successor legislation, the Canada Transportation Act (the "Act" or the "CTA").

   National Transportation Act, 1987, R.S.C. 1985, c. 38 (3rd supp), sections 63.1, 63.3

   Canada Transportation Act, S.C. 1996 c. 10, sections170 to 172

   House of Commons Debates,Vol. XIII (17 June 1988) at 16572-3

9. The Agency has used its authority to initiate a series of accessibility regulations. In addition, in the mid-1990's, the Agency coordinated a "consensus" process involving passenger rail providers (including VIA) and representatives of persons with disabilities (such as CCD). The process resulted in the issuance of standards in the form of the "Code of Practice: Passenger Rail Car Accessibility and Terms and Conditions of Carriage by Rail of Persons with Disabilities" (the "Rail Code"). The Rail Code defines accessibility by incorporating the CSA Standards. The Rail Code standards are not regulations but are considered to be advisory. The President and CEO of VIA publicly committed VIA to complying with the Rail Code when it came into effect in 1998.

   "Code of Practice: Passenger Rail Car Accessibility and Terms and Conditions of Carriage by Rail of Persons with Disabilities" (February 1998, Minister of Public Works and Government Services Canada) [Appeal Book, Vol. 4, Tab 140-4, page 1417]

   Affidavit of Laurie Beachell at para. 15 [Appeal Book, Vol. 12, Tab 217]

   CTA Decision No.175-AT-R-2003 at 20, 38-39 [Appeal Book, Vol. 1, Tab 2]

10. The standards established in the Rail Code are comparable to the mandatory standards in other industrialized countries such as the United States, the European Union (based on earlier standards developed in the United Kingdom) and Australia.

    Affidavit of Laurie Beachell at para. 9, Exhibits "A" through "D" [Appeal Book, Vol. 12, Tab 217]

11. The Rail Code states, "It should be emphasized that this Code presents minimum standards that rail carriers are expected to meet". VIA now takes the position that the Rail Code may be deviated from since "compromises are expected and reasonable under the Rail Code because it is voluntary".

    Letter from Campion to the Agency (August 21, 2003) [Appeal Book, Vol. 7, Tab 208 at 2768

    Rail Code [Appeal Book, Vol. 4, Tab 140-4, page 1420]

    C. The Renaissance Cars

12. In 2000, VIA was given $400 million dollars of additional funding from the federal government, over and above its annual allocation, with which to make major capital improvements. The Minister of Transportation of the day promised the members of his Advisory Committee on Accessible Transportation (ACAT) that any new rail cars purchased would meet Rail Code standards. He wrote to the President of VIA on September 26, 2000 suggesting that it seek the Agency's expert advice on how the Rail Code applied to particular trains.

    Affidavit of Laurie Beachell at para. 8 [Appeal Book, Vol. 12, Tab 217]

    CTA Decision LET-AT-R35-2001 (January 24, 2001) [Appeal Book, Vol. 2, Tab 30 at 306]

13. It became apparent that VIA was only seriously considering purchasing the Renaissance trains. The Renaissance trains are much narrower than normal trains. The coach cars have only three seats across, rather than the customary four. They had been built to go through the "Chunnel" between England and France, but when the project was postponed, assembly of the rail cars stopped. The Renaissance trains did not meet American or British standards, and would not have been eligible for service in those jurisdictions. There were no bidders from other countries with mandatory accessibility standards. By VIA's own estimate, it saved more than $300 million by purchasing these cars, out bidding countries such as Iraq and Morocco.

    Affidavit of Laurie Beachell at paras. 9, 53, 76 [Appeal Book, Vol. 12, Tab 217]

    Affidavit of Ron Woollam, Exhibit B [Appeal Book, Vol. 13, Tab 219 at 5320]

    Letter from Mackaay (January 3, 2001) [Appeal Book, Vol. 1, Tab 18 at 322]

    CCD Submission (March 18, 2000) [Appeal Book, Vol. 6, Tab 152 at 2247-2252]

    Report of Ron Woollam (September 20, 2001) [Supplementary Appeal Book, Tab 2-19]

    Drawings of LRC cars [Appeal Book, Vol. 3, Tab 108]

    D. CCD's Application to the Agency

14. In November, 2000, persons with disabilities who were permitted to see the Renaissance cars raised concerns that neither the coach cars nor the sleeper cars were accessible to passengers in personal wheelchairs. The only compartment meant to be accessible was not: it had doors too narrow to admit a person in a personal wheelchair, the washroom was inaccessible and a person could not retain their wheelchair in the sleeping compartment. These concerns were raised with VIA. When VIA did not respond to expressions of concern from the disability community, and did not file an application with the Agency requesting it determine whether the design of these cars represented undue obstacles to the mobility of persons with disabilities, CCD made the application.

    Affidavit of Laurie Beachell at paras. 21-23 [Appeal Book Vol. 12, Tab 217]

    Letter from Eric Boyd to Marc LeFrançois, Chairman and Acting C.E.O. of VIA (November 25, 2000) [Appeal Book, Vol. 8, Tab E-15]

    CCD Application to the CTA (December 4, 2000) at 1 [Appeal Book Vol. 1, Tab 8]

15. The barriers to accessibility posed by the Renaissance trains are listed in CCD's submissions to the Agency. CCD sought: a wheelchair accessible coach car and sleeping compartment; seating for a person with a visual disability; and movable armrests and stairs suitable for ambulatory persons with mobility impairments. CCD's concerns about the rail cars' accessibility were formulated into issues by the Agency, pursuant to rule 21 of the Agency's General Rules.

    CCD Submissions (January 31, 2002) [Appeal Book Vol. 3, Tab 131]

    CTA Decision LET-AT-R-11-2002 [Appeal Book Vol. 3, Tab 129]

    National Transportation Agency General Rules, Rule 21

16. VIA responded to CCD's application on December 12, 2000 and January 3, 2001. VIA initially pledged to provide the analysis of its "design, construction, scheduling and operation" relating to "its obligations to provide accessible transportation on a schedule to be fixed by the CTA…". VIA next took the position that the trains "will [eventually] meet the [Rail] Code requirements", but were unwilling to provide details of the changes being made to the design of the rail cars it had purchased. VIA indicated that requests for information about rail car design before completion constituted intrusions upon VIA's internal management, planning and operations.

    Letter from Mackaay to the Agency (January 3, 2001) [Appeal Book, Vol. 1, Tab 18 at 319 and Tab 18-6 at 374]

    Letter from Mackaay to the Agency (December 12, 2000) [Appeal Book, Vol. 1, Tab 10 at 229]

    Letter from Campion to Agency (April 2, 2001) [Appeal Book, Vol. 2, Tab 55]

17. VIA challenged the Agency's jurisdiction to consider CCD's application, arguing the application was "premature" and that the "necessary facts to found the application do not presently exist". The Agency determined that it did have the jurisdiction to deal with the "design" of the Renaissance cars and "to make an undue obstacle determination in advance of rail equipment being put into service". The Agency's decision was consistent with its position that the most cost effective time to implement changes (if any were required) would be before the manufacturing process began. VIA's application for leave to appeal the Agency's jurisdiction was dismissed with costs by the Federal Court of Appeal on May 1, 2001.

    CTA Decision Let-AT-R-80-2001 (February 22, 2001) [Appeal Book, Vol. 2, Tab 40 at 566]

    VIA's Factum before the Federal Court of Appeal, Court File No. 01-A-13 (March 16, 2001) [Appeal Book, Vol. 12, Tab 217-I]

    VIA Notice of Motion for Leave to Appeal, March 9, 2001 - Court File No. 01-A-13 [Appeal Book, Vol. 2, Tab 48]

    Federal Court of Appeal Order May 1, 2001 - Court File No. 01-A-13 [Appeal Book, Vol. 2, Tab 60]

    CTA Decision LET-AT-R-35-2001 (January 24, 2001) [Appeal Book, Vol. 2, Tab 30 at 505-507]

    CTA Decision 175-AT-R-356-2001 (August 3, 2001) [Appeal Book, Vol. 3, Tab 89 at 886]

18. The Agency proceeded with the investigation of CCD's complaint and requested specific information from VIA. VIA took the position that it would not produce information "which is not in existence during the application period", but which would come into existence at a future date. The Agency held that it would adjudicate on the design VIA proposed to implement, again, consistent with its position that the most cost effective time to implement changes (if any were required) would be before the manufacturing process began. The Agency determined it was entitled to: (a) the schedule for the construction or retrofitting of the cars and (b) information regarding the eventual configuration of the trains, including any relevant plans (as well as any subsequent changes to the information filed).

    CTA Decision LET-AT-R-35-2001 (January 24, 2001) [Appeal Book, Vol. 2, Tab 30 at 508]

    CTA Decision Let-AT-R-80-2001 (February 22, 2001) [Appeal Book, Vol. 2, Tab 40 at 566]

    Letter from Campion to the Agency (April 2, 2001) [Appeal Book, Vol. 2, Tab 55 at 641]

    CTA Order No. 2001-AT-R-122 (April 3, 2001) [Appeal Book, Vol. 2, Tab 56]

    CTA Decision LET-AT-R-176-2001 (April 3, 2001) [Appeal Book, Vol. 2, Tab 57]

19. Despite the initial decision of this Court, VIA renewed its position that the Agency had no jurisdiction to deal with CCD's application. In addition it took the position that the Agency's jurisdiction, if it existed, had expired since 120 days had elapsed from filing, and further that the Agency had no right to the production it was demanding of VIA. The Agency determined otherwise and VIA sought leave to appeal the Agency's "unilateral extension of its statutory mandate", its order for "prospective productions of documents" and repeated its already rejected ground that CCD's application was hypothetical and therefore premature. While this appeal was pending, VIA applied for and was granted a stay of the Agency's proceedings, and brought a motion to have the Agency found in contempt. The Agency responded with a motion for directions. Before the contempt or directions motions were argued, this Court dismissed VIA's motion for leave to appeal with costs.

    Letter from Campion to the Agency (April 2, 2001) [Appeal Book, Vol. 2, Tab 55 at 641]

    CTA Decision Let-AT-R-176-2001 (April 3, 2001) [Appeal Book, Vol. 2, Tab 57 at 646-647]

    VIA Notice of Motion for Leave to Appeal, April 24, 2001 - Court File No. 01-A-16 [Appeal Book, Vol. 2, Tab 59]

    VIA's Factum before the Federal Court of Appeal, Court File No. 01-A-16 (April 24, 2001) [Appeal Book, Vol. 12, Tab 217-M]

    VIA's Notice of Motion for a Stay of Proceedings - Court File No. T-580-01 (May 9, 2001) [Appeal Book, Vol. 2, Tab 61]

    Federal Court Trial Division Order - Court File No. T-580-01 (May 18, 2001) [Appeal Book, Vol. 2, Tab 62]

    Agency Motion for Directions - Court File No. T-580-01 (June 5, 2001) [Appeal Book, Vol. 2, Tab 63]

    Federal Court of Appeal Order - Court File No. 01-A-16 (June 8, 2001) [Appeal Book, Vol. 2, Tab 70]

20. Following the dismissal of its leave to appeal applications, VIA responded to the Agency's order for disclosure of information regarding retrofit plans. VIA advised that the Renaissance cars would be brought into service starting in December 2001 on the one hand, and on the other hand, that VIA had no plans of either the trains current or future design and would only produce plans for trains that "are completed". Once again, the Agency reiterated its order that VIA provide all proposals and plans for the construction or retrofit of the cars as soon as they became available, and to provide VIA's expected schedule for completion of plans and work.

    Letter from Campion to the Agency (June 15, 2001) [Appeal Book, Vol. 2, Tab 74 at 729-731]

    CTA Decision LET-AT-R-304-2001 (June 29, 2001) [Appeal Book, Vol. 2, Tab 76 at 745-746]

21. VIA refused the Agency's request that it delay the retrofit/manufacture process pending a decision by the Agency, and insisted that it would not provide plans until they were "finalized", which would occur as the retrofit/manufacture process got underway. VIA also absolutely refused to provide the Agency with any information about interim plans or alternative design it was considering. A list of the Agency's decisions concerning VIA's refusal to provide the requested information can be found in paragraphs 40 to 44 and 46 of Laurie Beachell's affidavit.

    Affidavit of Carole McKaay (July 13, 2001) [Appeal Book, Vol. 3, Tab 80 at 852-856]

    CTA Decision LET-AT-R-356 (August 3, 2001) [Appeal Book, Vol. 3, Tab 89 at 883]

    Affidavit of Laurie Beachell at paras. 40-44, 46 [Appeal Book, Vol. 12, Tab 217]

22. On August 31, 2001 VIA provided "accessibility plans" for the Renaissance trains. Pursuant to the Agency's direction, a viewing of the trains was held on September 20, 2004 and attended by representatives of CCD and engineers for the Agency and CCD.

    Letter from Carole McKaay to the Agency (August 31, 2001) [Appeal Book, Vol. 3, Tab 97]

23. Following the viewing, written interrogatories were conducted. VIA refused all information about either the structural feasibility or cost of making modifications, particularly in relation to widening the doors within the service car proximate to the "accessible suite" and within the coach car, and on expanding the tie-down location in the coach cars.

    Letter from Baker to the Agency (October 2, 2001) [Appeal Book Vol. 3, Tab 100]

    CTA Decision LET-AT-R-418-2001 (October 16, 2001) [Appeal Book Vol. 3, Tab 101]

    Letter from Baker to Campion enclosing interrogatories (November 15, 2001) [Appeal Book Vol. 3, Tab 119]

    VIA's Response to Interrogatories (November 30, 2001) [Appeal Book Vol. 3, Tab 122]

24. VIA stated that the widening would be "feasible" but "the cost, planning and associated delay in widening doors to 32 inches is too great to justify the expense." Despite requests that it clarify its position, VIA refused to specify the expense, asserting that it would take nine to twelve months to provide estimates. The Agency then specifically requested VIA supply information concerning the feasibility of expanding the tie-down area to which VIA's counsel provided estimates of lost revenue with no supporting expert evidence.

    Letter from Campion to Baker (October 25, 2001) [Appeal Book Vol. 3, Tab 108]

    VIA's Response to Interrogatories (November 30, 2001) [Appeal Book Vol. 3, Tab 122]

    Letter from Baker to the Agency (December 6, 2001) [Appeal Book Vol. 3, Tab 123]

    CTA Decision Let-AT-R-5-2002 (January 8, 2002) [Appeal Book Vol. 3, Tab 124 at 1180]

    Letter from Campion to the Agency (January 14, 2002) [Appeal Book Vol. 3, Tab 127 at 1192]

25. In anticipation of oral argument, which VIA requested and CCD opposed, both parties filed final written submissions to the Agency (between January 30, 2002 and February 18, 2002).

    Letter from Campion to Agency (November 9, 2001) [Appeal Book Vol. 3 Tab 114]

    Letter from Baker to Agency (November 15, 2001) [Appeal Book Vol. 3, Tab 118]

    CTA Decision LET-AT-R-11-2002 (January 16, 2002) [Appeal Book Vol. 3, Tab 129 at 1212]

    CCD Written Submissions (January 30, 2002) [Appeal Book Vol. 3, Tab 131]

26. Prior to oral argument, the Agency requested further information from VIA including information concerning the purchase price of the Renaissance trains and the potential for expanding the tie-down area. Agency questions directed at both parties concerned the "feasibility and cost of making modifications apply to each of the different stages of completion of the cars" and the impact on persons with disabilities if the modifications were not made. VIA's response was scanty. CCD responded with three independent expert reports, supporting its conclusions that: (1) a high percentage of wheelchair users could not access the bulkhead door inside the coach cars or the doorways into and within the "accessible suite"; (2) almost all adult wheelchair users could not access the tie-down space in the coach car; (3) most users of typical wheelchairs could not turn their chairs around in the washroom or the suite VIA characterized as "accessible".

    CTA Decision LET-AT-R-36-2002 (February 1, 2002) [Appeal Book Vol. 3, Tab 133]

    CTA Decision LET-AT-R-62-2002 (March 1, 2002) [Appeal Book Vol. 6, Tab 148 at 2228]

    Letter from Campion to the Agency (March 20, 2002) [Appeal Book Vol. 6, Tab 153 at 2293]

    Letter from Baker to the Agency (March 18, 2002) enclosing the reports of Laurie Ringaert MSc, BMR-OT, David Harding and Stephen Ryan P. Eng. [Appeal Book Vol. 6, Tab 152]

27. Oral submissions were conducted on April 8, 2002. Following oral submissions, the Agency learned (by happenstance) that VIA had made numerous changes to the "final design" it had submitted to the Agency including aspects dealing with "essential features of accessibility." The designs of the trains it had brought into service were different from the designs VIA had previously provided to the Agency. Noting VIA's conduct was "tantamount to concealing evidence" and in breach of its obligations to inform the Agency of modifications, the Agency ordered that a fresh view of the cars be taken.

    CTA Decision Let-AT-R-232-2002 (August 14, 2002) [Appeal Book Vol. 6, Tab 168]

    CTA Decision LET-AT-R-358-2002 (December 10, 2002) [Appeal Book Vol. 6, Tab 187]

28. On March 27, 2003, the Agency issued its Preliminary Decision. Closely following this Court's decision in Lemonde, the Agency dealt with:

    1. Canada's national transportation policy (page 14);
    2. principles of accessibility (page 19);
    3. the proper consideration of the Rail Code (page 20);
    4. the use of the CSA Standards (page 23);
    5. VIA's submission that the Agency lacked the expertise to exercise jurisdiction over the design of rail cars; (page 27)
    6. VIA's continuing submission that CCD's application was hypothetic and premature (page 27);
    7. VIA's network argument (page 36);
    8. structural and economic factors (page 40);

    Agency Decision No. 175-AT-R-2003 (March 2003) [Appeal Book, Vol. 1, Tab 2 at 31, 36-42, 44-47, 53-63]

29. The Agency applied the analysis indicated by this Court in Lemonde to each obstacle identified by CCD and made preliminary findings that the following obstacles were "undue":

    1. Coach car

       1. the lack of movable aisle armrests on the double seat side of the coach cars

    2. Economy coach car

       1. the width of the aisle between the two washrooms
       2. the inadequate clear floor space of the wheelchair tie-down to accommodate a Personal Wheelchair and a service animal
       3. the amount of manoeuvring space, including the lack of a 150 cm (59.06") turning diameter in the wheelchair tie-down area
       4. the width of the bulkhead door
       5. the lack of seating either beside or facing the wheelchair tie-down for an attendant
       6. the insufficient space that will accommodate persons travelling with service animals

    3. Consists

       1. the Montréal-Toronto overnight train consist and the fact that there is no accessible washroom for persons using the wheelchair tie-down in the economy coach cars

    4. Stairs

       1. the riser heights and stair depths
       2. the lack of closed stair risers
    5. 1. the width of the doors in the "accessible suite"
       2. the fact that a person with a disability will not be able to retain a Personal Wheelchair in the "accessible suite"
       3. the insufficient space beside the toilet in the "accessible suite" to allow a person using a Personal Wheelchair to effect a side transfer to the toilet
       4. the lack of a 150 cm (59.06") turning diameter in the "accessible suite"

    Agency Decision No. 175-AT-R-2003 (March 27, 2003) at 143-144 [Appeal Book, Vol. 1, Tab 2 at 159-160]

30. However, the Agency did not make a final decision. Instead, it gave VIA one last chance to provide evidence to support a conclusion that the obstacles were not undue. The Agency provided VIA with a clear indication of the structural and economic information it was seeking, but also indicated that VIA was free to provide any further information it considered relevant.

    Agency Decision No. 175-AT-R-2003 at 144-146 (March 27, 2003) [Appeal Book, Vol. 1, Tab 2 at 22, 160-162]

31. VIA responded to the Agency's offer of an additional opportunity to show cause by providing, for the first time, costings of some of the modifications being considered. While these costings were not prepared by an independent third party as the Agency had requested, counsel for VIA asserted "VIA Rail states that the costs are reasonable in its experience." Although more than 14 months had passed since VIA had advised the Agency that the costs of widening the doors was "under review", VIA provided no estimates on the issue. VIA also asserted that it would be "impossible" to make the washroom in the sleeper compartment accessible.

    Letter from Campion to the Agency (May 26, 2003) [Appeal Book, Vol. 7, Tab 191]

32. In May 2003 the Agency learned that the Transport Canada Rail Safety Directorate had determined in October, 2002 that the Renaissance cars did not comply with Canadian safety standards. It also learned that within three months of Transport Canada's determination, VIA had four options designed and costed by an independent engineering firm called Pro-Sphere, approved by VIA, and submi