CCD Position Presented to CTA RE: VIA Purchase of Nightstock Rail Cars

Via Facsimile and Courier

January 8, 2001

Ms. Marie-Paule Scott Q.C.
The Canadian Transportation Agency
Ottawa, ON
K1A 0N9

Dear Ms. Marie-Paule Scott Q.C.

Re: Application by the Council of Canadians with Disabilities ("Applicant")


The Council of Canadians with Disabilities (CCD) has had the opportunity to review the January 3, 2000 submissions of VIA Rail Canada Inc. (VIA). CCD reiterates the position advanced in its earlier submissions of December 4 and 14, 2000.

CCD has asked the Canadian Transportation Agency (CTA) to issue an interim relief order pursuant to sections 27(1) and 28(2) of the Canada Transportation Act S.C. 1996 c. C. 10 ( the "Act"), in relation to its s. 172 complaint that the Nightstock rolling stock VIA has purchased constitute an "undue obstacle to the mobility of persons with disabilities" in Canada.

In this request for an interim relief order, CCD agrees with (c) and (e) of VIA's characterization, at page 3-4 of Ms. Mackaay's submission of January 3, 2000. However CCD respectfully submits that the following amendments be made to the characterization by VIA, of the interim relief sought at this time:

  1. That (a) relates to the potential terms of a final and not an interim order
  2. That (b) should be amended to include at the end, the further particular that "including entering contracts for the retrofit of the Nightstock trains."
  3. That (d) is withdrawn, since an extension of the time frame within which the CTA must deal with CCD's complaint can, under the Rules, only be extended with its consent, and substitute an order affirming that CTA lacks the jurisdiction to award damages against a complainant, under s. 172, seeking an interim order, or
  4. alternatively ordering that CCD need not give an undertaking to pay damages to VIA under all the circumstances of this case.

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In April of 2000, the Minister of Transportation's Advisory Committee on Accessible Transportation (ACAT) was informed by the Minister, David Collenette, that any future rolling stock purchased by VIA would be accessible to all Canadians. Subsequent to this meeting, the Minister wrote to Marc LeFrancois, Chairman of the Board of VIA. In that letter (Tab 1) the Minister asked Mr. LeFrancois to

start consultations immediately, if you have not done so already, with my Advisory Council on Accessible Transportation. I would also suggest that you involve the Canadian Transportation Agency so that they can share their expert advice on the interpretation of the provisions of the Code.

In response to the Minister's above request, Mr. LeFrancois replied on October 19, 2000 (Tab 2) and stated that:

We believe that the European equipment currently being considered by VIA Rail meets most of the provisions of the Code of Practice-Passenger Rail Accessibility and Terms and Conditions of the Carriage by Rail of Persons with Disabilities. Nevertheless, we do agree that a consultation process is required to address the concerns of travelers with disabilities.

On November 16, 2000 one member of the ACAT, Eric Boyd, and the Managing Director of the Canadian Paraplegic Association, was able to examine the Nightstock passenger cars. The others still have not had the opportunity to view them. On November 25, 2000, Mr. Boyd wrote to Mr. LeFrancois (Tab 3) and informed him that none of the sleeper units in the regular sleeper cars were wheelchair accessible, nor were washrooms in the coach car wheelchair accessible. In the coach car there was no way to accommodate the transfer of individuals from wheelchairs to the permanent seating of the rail car, nor was there any designated space for a wheelchair tie down, where an individual in a power wheelchair could remain seated in their own wheelchair. According to Mr. Boyd, the only place that could be used by a person limited to a wheelchair is in the service car. There a person in a wheelchair would be confined to the wheelchair accessible unit capable of accommodating one person with a mobility impairment and one other person who could sleep in the top bunk. Such unit contained the only marginally accessible washroom in the three-car combination. This position was set out in CCD's December 4th submission and has not been denied by VIA.

On November 29, 2000 Mr. LeFrancois wrote to Minister Collenette and stated that (Tab 4) after meeting with the representatives of several groups on November 16, 2000, VIA would receive written feedback from these representatives. In this correspondence, Mr. LeFrancois stated that:

(w)e will continue to consult and gather feedback to ensure that VIA Rail is in a position to fulfill our shared commitment of providing accessible rail transportation to Canadians.

I will keep you informed as to how our consultations are progressing, and how we intend to incorporate the feedback we receive into our construction program.

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On December 4, 2000 CCD wrote to Mr. LeFrancois (Tab 5) and informed him that they opposed the purchase of the rolling stock because they believed the rolling stock was less accessible than what was currently available in Canada. On this same day, CCD filed an application with the Canada Transportation Agency (Tab 6) seeking an interim relief order preventing VIA from entering into any contract with Alstom for the purchase of the rolling stock. At this time no information had been communicated to either ACAT, CCD or the public that VIA had already entered into a contract with Alstom for the purchase of this rolling stock.

In fact, on December 8, Mr. LeFrancois replied (Tab 7) to the CCD letter of December 4, 2000 and stated:

I find it unfortunate that you have come to certain conclusions and judgments regarding this equipment without having seen it first hand in spite of our best efforts to facilitate such a viewing. We believe that your resort to legal and regulatory avenues is premature and not in keeping with the spirit of the consultative and constructive approach we and others have taken to the issues before us.

On that same day, CTA wrote to VIA (Tab 8) asking that the response to CCD's application of December 4, 2000 should include the

time frame being contemplated for reaching a decision on the possible acquisition of the Nightstock equipment.

On December 12, 2000 VIA, (Tab 9) through their General Counsel and Corporate Secretary, Carole Mackaay, formally responded to CCD's application for interim relief and stated that the rolling stock had already been purchased. In terms of accessibility, VIA stated that:

the issue of design, construction, scheduling and operation of VIA Rail and its obligations to provide accessible transportation requires extensive and careful analysis. VIA Rail will provide such an analysis on a schedule to be fixed by the CTA but cannot answer the substantial issue in the time required by the CTA.

On December 14, 2000, CCD was informed about the purchase of the rolling stock that is the subject of this application (Tab 10). Through legal counsel, CCD wrote to the CTA and amended its submissions for an interim order.

On December 15, 2000, in response to the CCD's continued request for an interim order to stop the order of the rolling stock, VIA requested (Tab 11) that if any interim order was issued by the CTA then such order should include an undertaking by CCD for damages for the full price of the contract between VIA and Alstom. If CCD could not post security of costs to VIA, then VIA asked the CTA to reject all relief sought by the CCD.

On December 18, 2000, the CTA asked (Tab 12) for further submissions from the parties. At this time the CTA requested that VIA:

be required to submit to the Agency and provide a copy to CCD by January 3, 2001, its existing plans to make this rolling stock accessible for persons with disabilities.

On that same day CCD, through its legal counsel, (Tab 13) requested that the contract of purchase agreement between VIA and Alstom be produced. On December 21, 2000 the CTA responded and stated that:

(t)he Agency is not convinced at this stage in the proceeding that CCD's request should be granted. However the Agency will consider CCD's request once VIA rail has filed its reply to the Agency's letter of December 18, 2000.

On January 3, 2000, VIA partially responded to the CTA's request of December 18. It is these submissions that will form the foundation of CCD's response.

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In their letter of January 3, 2001, VIA states that before the CTA can make an interim order, they must first make a "finding that there exists an undue obstacle to the mobility of persons with disabilities." VIA further submits that

such a finding requires the Agency to consider all of the complex factors set out in Part III and draw a conclusion only after identifying, analyzing and balancing all relevant factors.


VIA Rail submits in this letter that the CCD has not met any of the required tests. The CCD has not shown that the Nightstock trains present an "obstacle". It cannot show that any impediment is "undue". On this ground alone, the Agency has no jurisdiction to act and the CCD application should be dismissed. Additionally, the CCD has wholly failed to prove urgency, to meet the stringent tests for an injunction or to make out the case for interim relief.

In these submissions VIA states that in considering an interim order, it must consider whether the Applicant has shown a serious issue to be tried, whether the CCD itself will suffer irreparable harm if the injunction is not granted and the commercial ramifications, costs and legal responsibilities to VIA Rail of not completing its contractual obligations.

In support of its submissions, VIA states the factors that should be considered by the Agency include the Act, particularly s. 172, as well as The Code of Practice of Passenger Rail Accessibility and Terms and Conditions of Carriage by Rail Persons with Disabilities.

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The CTA has given VIA every opportunity to justify why CCD should not receive the interim order it seeks. It is therefore illuminating to point out what VIA does not provide as support for its submissions. VIA does not offer as evidence any information to contradict CCD's earlier assertion that the Nightstock rail cars are largely inaccessible. VIA does not provide as evidence the purchase agreement from Alstom, which would give credence to the submissions it makes regarding the costs it may suffer if an interim order is granted. VIA does not provide any information on comparative rolling stock costs nor does VIA provide a cost comparison with other rolling stock manufacturers. In fact VIA may not even have such information as this contract for purchase of rolling stock was never put out to tender.

Further it is respectfully submitted that VIA neglected to address the following:

  • The order of December 18, 2000 of the CTA to provide the "interim plans to make this rolling stock accessible for persons with disabilities". VIA's current position is that no such plans exist, nor are further improvements contemplated.
  • CCD's request for a prospective order granting it reasonable costs in this "public interest" proceeding, regardless of the eventual outcome.
  • Any evidence on the issue of whether the Nightstock trains constitute an "obstacle", choosing instead to recite sections of the Rail Code and draw unsubstantiated conclusions of law about the extent to which the cars meet these standards.
  • Evidence that the interim order sought by CCD would interfere with its contractual position with Alstom. Instead, VIA, asserts, without producing the contract that this is so.
  • VIA's earlier suggestion that the CCD be required to post a bond in the event the CTA granted the interim order it was seeking, or at least fail to affirm this request and substantiate the basis for such a request. In particular it does not produce the contract to enable CTA and CCD to assess its contents.

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While VIA does not identify with precision the test it says applies to the CTA's granting of an interim order it suggests that the test is generally comparable to that for an interim injunction. CCD agrees that the interim order requested should follow the common law and offers American Cyanamid v. Ethicon [1975] AC 396 (HL Eng.) as the leading authority on this point. There, the House of Lords lowered the threshold for an applicant to attain an interlocutory injunction. It was determined that instead of the prior elusive threshold of Prima Facie Case, an applicant should only have to demonstrate that there was a (a) serious issue to be tried. Once this threshold was reached, then the adjudicator should proceed to a (b) balance of convenience test where it must be demonstrated that without the interlocutory injunction, the applicant would be irreparably harmed. In weighing whether the applicant will suffer irreparable harm an adjudicator should look at whether maintaining the status quo of the parties will cause undue hardship on the respondent.

(a) Serious Issue to be tried

It is CCD's submission that the first step in determining whether an interim order should be granted is whether the matter before the CTA is a serious issue to be tried.

Under s. 28. (2) of the Act, any interim order by the CTA is a remedy that is only temporary. CCD is not asking for the CTA to make a final ruling at this time that the Nightstock rail cars present an undue obstacle to the mobility of persons with disabilities.

The purpose of this application for an interim order is to restrain VIA from proceeding any further with a business arrangement that may violate the Act, the Code, and the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("Charter") On such a basis CCD should meet the applicable test outlined in American Cyanamid v. Ethicon

It is respectfully submitted that VIA's submission on page 2-3 that states:

(t)he Agency cannot take "appropriative corrective measures" until there is a determination that there is an undue obstacle (section 172(3)). The Agency cannot therefore make an interim order under section 28(2) of the CT Act until such a finding has been made


The Agency therefore must first make a finding that there exits an "undue obstacle" to the mobility of persons with disabilities;

is an inaccurate interpretation of the standard for any interim or interlocutory order under the common law, and should not apply to interim orders under the Act.

It is respectfully submitted that to accept VIA's interpretation that the CTA would first have to find that there is an undue obstacle under section 172(3), would require a determination of the merits of the case.

Such an interpretation is inconsistent with the determination of Lord Diplock in American Cyanamid v. Ethicon when he stated that

(i)t is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trialÂ…..unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.

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It is therefore submitted that the first step for the CTA in determining that an interim order should be granted is only to rule whether the applicant CCD, has a serious issue to be tried and further that CCD has satisfied this test.

CCD has satisfied this test due to uncontested evidence provided by Mr. Eric Boyd (Tab 3) in his letter to Mr. LeFrancois on November 25, 2000. In that letter Mr. Boyd points out that a person who is limited to a wheelchair would be segregated to only one part of the service car, would not have adequate access to the rest of the rolling stock nor would the individuals with mobility impairments have adequate access through the narrow aisle ways.

In addition to the letter of Mr. Boyd, CCD tenders Mr. Glen Fisher P Eng, with his Curriculum Vitae (Tab 14) as an expert in Railway Engineering and Management Consulting. Mr. Fisher has been accepted as an expert in several cases before transportation agencies.

In his submission to the CTA, (Tab 15) Mr. Fisher states at page 2, that in his opinion,

the Nightstock rolling stock is not suitable for any retrofit to enhance because its exterior and interior body dimensions are so much narrower than Canadian rolling stock. In the coach car, the aisle is narrow, the overhead baggage rack is on one side of the car only and there are only 3 seats abreast, compared to four in most Canadian stock and even 5-abreast in some commuter coaches. Thus the Nightstock design is already significantly reduced from normal capacity and would require a further reduction possibly to only two seats per row in order to make an aisle wide enough for basic mobility of passengers on crutches, with walkers or their own wheelchairs.

It is CCD's respectful submission that for the reasons outlined above, VIA has incorrectly determined that the Nightstock railcars are accessible.

Additionally Mr. Fisher states, on page 3 that the proposed rail cars do not meet American or Canadian standards for body strength under compression. Mr. Fisher fears that passengers in the Nightstock equipment may be put at risk due to the lack of strength of the rail cars. Further it is apparent that the proposed wheelchair tie down is within the crumple zone of the service car. Thus a person in the wheelchair tie-down area would be in the most vulnerable position in the rolling stock and would be least able to take evasive action if there was a serious accident.

Therefore it is submitted that from the evidence provided to the CTA by Mr. Ryder and Mr. Fisher, CCD has satisfied that it has a serious issue to be tried and that the CTA should proceed to the next step in the test for granting an interim order.

(b) Balance of Convenience

It is respectfully submitted that in weighing the balance of convenience the governing principle from American Cyanamid v. Ethicon is that if the applicant were to succeed on the final adjudication of the merits, would the applicant be adequately compensated with damages. If the applicant can be adequately compensated with damages then no interim order should be granted. However if damages cannot adequately compensate the plaintiff, or cannot be recovered then the CTA must ask whether, if the defendant were successful at final disposition of the merits, damages would be an adequate remedy for any loss that it would incur due to the interim order

It is respectfully submitted that if an interim order is not granted and the CCD is ultimately successful at final adjudication, the CTA has no jurisdiction to award damages to the successful party.

It is respectfully submitted that even if the CTA had the jurisdiction to award damages to CCD, there is no financial remedy that would provide adequate compensation to the CCD and more importantly the Canadians with disabilities it represents.

If the CTA determines that an Interim Order should not be granted then VIA will be allowed to continue with a purchase agreement that may violate the Act, the Code, and the Charter.

In determining the balance of convenience, the CTA should recognize that one of the central submissions that VIA have relied upon is that this interim order, and application are of no effect because the purchase agreement has already been completed. If the interim order is not granted it can be anticipated that VIA will move forward with its plan to ship the completed and uncompleted rail cars.

By VIA's own account, the $130 million is only available one time. If they are allowed to continue this deal prior to the final CTA ruling that it is lawful, it may be too late to refund this public money. The members of the disabled groups that CCD represents will be irreparably harmed if an interim order is not granted.

It is respectfully submitted that there is no evidence before the CTA, brought by VIA that an interim order granted by the CTA would cause economic loss or give rise to a cause of damages against the applicant CCD.

VIA could only demonstrate damages if it produced either the purchase agreement for the Nightstock rail cars or information that these rail cars were less expensive than other alternative rolling stock.

It is respectfully submitted that VIA cannot provide any information as to the economic prudence of the purchase of the Nightstock equipment because this contract was never tendered to other producers of rolling stock.

It is further submitted that even if the CTA is in doubt about the possible ramifications of granting an interim order American Cyanamid v. Ethicon is clear, that where such doubt exists:

of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises. Â…


(w)here other factors appear to be evenly balanced it is a counsel of prudence to take such measure as are calculated to preserve the status quo.

It is thus respectfully submitted that the an interim order should be granted in order to preserve the status quo until such time that the CTA can make a final ruling on the merits of this application.

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In the alternative, if the CTA determines that prior to granting an interim order, it must first make a ruling on whether the rolling stock purchased by VIA on December 1, 2000 amounts to an undue obstacle under s. 170 of the Act, than CCD respectfully submits that the Nightstock equipment violates s. 172 of the Act.

It is the submission of CCD that it has demonstrated that the Nightstock rail cars do present an undue obstacle to the mobility of persons with disabilities. The letter of Mr. Eric Boyd, (Tab 3) contains a detailed account about the lack of accessibility of the rolling stock that was viewed by him on November 16, 2000. This includes but is not limited to the segregation of persons confined to wheelchairs to the Service Car as well as the fact that neither the Coach Car nor the Sleeper Car has any accessible washrooms for persons with mobility limitations. In short, if a person in a wheel chair wishes to travel with VIA, they can only travel in the Service Car and in so doing they would be segregated for much, if not all of their travel, to the wheelchair accessible sleeper unit.

Despite the fact that information was communicated to Mr. LeFrancois on November 25, and to VIA on December 4 (Tab 5) and 14, (Tab 10) this evidence has never been addressed, at any time by any of the submissions by VIA. In short the letter of Mr. Boyd, as evidence, is uncontested by VIA.

In addition to the evidence of Mr. Boyd, CCD would submit that even Mr. LeFrancois, in his letter of October 19 (Tab 2) to the Minister of Transportation, admits that the rolling stock purchased by VIA does not meet all of the provisions of the Code.

As well, in the submissions of VIA on December 12, 2000 (Tab 9) VIA states that they will provide an analysis of the design and construction under its obligations to provide accessible transportation. VIA further stated that it would provide such an analysis at a future time fixed by the CTA.

On December 18, 2000 the CTA requested (Tab 12) that VIA provide its plan that would make the rolling stoke accessible for persons with disabilities. In its submissions of January 3, 2000 VIA admitted that did not have such a plan because "the rolling stock is already accessible for persons with disabilities.

The only legal support that VIA offers in its attempt to persuade the CTA that CCD has not met its burden is the interpretation of "undue" in Via Rail v. National Transportation Agency and Jean Lemonde (docket A-507-96) in Exhibit 4 of VIA's submissions.

It is CCD's respectful submission that this Federal Court of Appeal decision only provides that the CTA has the duty to give reasons for its decisions. This is a decision that the CCD is finds consistent with the notion of procedural fairness required from a statutory administrative decision maker.

Despite the lack of evidence provided by VIA that the Nightstock rail cars provide no undue obstacle to the mobility of persons with disabilities, Amtrak, an American rail passenger company, provides on page 23 (Tab 16) that:

(a)ll newly purchased trains will meet or exceed ADA regulations for accessible equipment. In addition, training programs have been developed for Amtrak personnel to ensure that our staff is prepared to provide the best possible service to travelers with disabilities.

CCD is only seeking that VIA provide the CTA with evidence that the Nightstock rail cars meet the requirements of the Act, the Code and the Charter. Until such time as can be demonstrated by VIA to the CTA that these rail cars are lawful any purchase agreement should be subject to an interim order and not allowed to proceed any further.

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CCD respectfully submits that it be awarded costs, under s. 25.1 (1) of the Act, in advance of the hearing in order to prepare expert witnesses and provide appropriate legal services.

As can be determined through its letter of January 8, 2001, (Tab 18) CCD is a non-profit organization with limited financial resources. It would be unfortunate if the purchase of the Nightstock rail cars were indeed found to be inaccessible and created an undue obstacle to the mobility of persons with disabilities, but such information was realized after VIA had completed the purchase and final order of the equipment from Alstom.

In support of its request for an award of costs in advance of the hearing CCD would ask that the CTA examine its decision in Ms. Lucie Lemieux-Brassard (LET-A-251-1997) (Tab 19) which states in its disposition of a similar request for costs that:

(t)he Agency notes the principle that costs are generally to be compensatory in nature and, as such, are to be awarded at the end of a proceeding. The Agency finds no compelling reasons to depart from this principle in this case.

It is respectfully submitted that the CTA find that this case represents the exact compelling reason that the CTA required in Ms. Lucie Lemieux Brassard.

Unlike Ms. Brassard, CCD is not represented by the Advocacy Resource Centre for the Handicapped. As such, it has already incurred several thousand of dollars of legal costs in advocating on behalf of its membership. It has been required to do so because of the lack of consultation afforded to it and ACAT by VIA. Due to the lack of consultation, CCD will be forced to not only spend its limited resources on legal fees but in order to meet the burden before the CTA for final determination, CCD will be required to provide expert testimony as well as scientific studies on the Nightstock rail cars. Without the financial support of the CTA in providing costs in advance CCD may not be able to provide the information required by the CTA.

If the CCD is prevented from adequate representation solely for financial reasons, the CTA would not be able to make a suitable determination in its final order and VIA may be successful in the defense of this application only because of its superior financial resources.

It is respectfully submitted that CCD represents people who are already economically disadvantaged. To further prejudice them through denying them costs in advance of the hearing would violate the very protections inherent within the Act, and the Charter.

For these reasons it is respectfully submitted that CCD be granted costs in advance of the final hearing.

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The purpose of the current matter before the CTA is to determine whether VIA should be restrained from proceeding any further with its purchase agreement of the Nightstock rail cars from Alstom. CCD is requesting that under s. 28. (2) of the Act, the CTA issue an interim order prohibiting any further action on the part of VIA, until the final disposition on the merits of the application.

It is not, as VIA maintains, the purpose of this request for an interim order, to determine whether an undue obstacle exists to the mobility of persons with disabilities. No such finding can, or should, be made at this time. Only at the final disposition through the adducing of evidence can such a determination be made. The only purpose of this interim order is to maintain the status quo until such time as the CTA is satisfied that the Nightstock rail cars meet the requirements of the Act, the Code and Charter.

In making this request, CCD would respectfully submit that the appropriate manner in which to determine whether an interim order is made should be guided by American Cyanamid v. Ethicon. As such the CTA should be persuaded that CCD has a serious issue to be tried and that on the balance of convenience, CCD will suffer irreparable harm if the interim order is not granted.

CCD through its membership, represents the seventeen percent of Canadians who face some form of disability. If the interim order is not granted every single disabled Canadian who relies, or wishes to rely, on railway transportation will be affected. Through its previous submissions the CTA should be convinced that the CCD has a serious issue to be tried.

On the balance of convenience component of the test, it is VIA's position that this interim order should be rejected by the CTA largely because there in not an undue issue to be tried. Implicit within this submission by VIA is that it is already too late for the CCD to challenge the purchase agreement.

If the CTA refuses to grant this interim order than it will reward VIA with more time to further entrench this purchase agreement and make it more difficult for the CCD and the CTA to overturn the purchase of December 1, 2000.

If the CTA is persuaded that VIA will face economic hardship if the interim order is granted, it is respectfully submitted that VIA provided no evidence as to the damages it would suffer from an interim order of the CTA.

Additionally, it is unclear whether damages could ever be assessed to compensate the seventeen percent of disabled Canadians whose interests would be affected if the CCD is successful in the final decision of the CTA. Even if damages could be assessed, it would appear that the CTA has no jurisdiction to order damages in such a case. Thus on a balance of convenience, the CTA, it is respectfully submitted, should favour CCD.

Finally, CCD would ask that they be granted costs in advance of the hearing in order that the CTA be provided with the information it requires and the disabled community of Canada deserves.

All of which is respectfully submitted.

Yours truly,

Shell Jacobs Lawyers

Cc Carole Mackaay
General Counsel and Corporate Secretary VIA Rail

Pat Danforth
Eric Norman
Laurie Beachell