VIA Rail Supreme Court Appeal

Court File No. 30909

IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE FEDERAL COURT OF APPEAL)

BETWEEN:

COUNCIL OF CANADIANS WITH DISABILITIES

Appellant
(Respondent in the Federal Court of Appeal)

- and -

VIA RAIL CANADA INC.

Respondent
(Appellant in the Federal Court of Appeal)

APPELLANT'S FACTUM

Counsel for the Appellant, the Council of Canadians with Disabilities

David Baker
Sarah Godwin
bakerlaw
Barristers and Solicitors
400-672 Dupont Street
Toronto, ON M6G 1Z6

Tel: 416-533-0040
Fax: 416-533-0050
Email: dbaker@bakerlaw.ca;
sgodwin@bakerlaw.ca

Agent

Michelle Flaherty
Sack, Goldblatt, Mitchell
Barristers and Solicitors
500-30 Metcalf Street
Ottawa, Ontario K1P 5L4

Tel: (613) 235-5327
Fax: (613) 235-3041

Email: michelleflaherty@sgmlaw.com

Original To:

THE REGISTRAR

Supreme Court of Canada
Ottawa, Ontario

Copies To:

John Campion
Fasken Martineau Dumoulin LLP
66 Wellington Street West
42nd Floor, PO Box 20
Toronto ON M5K 1N6

Tel: 416-865-4357
Fax: 416-364-7813

Counsel for the Respondent

Jeffrey W. Beedell
Lang Michener LLP
300 - 50 O'Connor Street
Ottawa ON K1P 6L2

Tel: 613-232-7171
Fax: 613-231-3191
Email: jbeedell@langmichener.ca

Ottawa Agent for the Respondent

TABLE OF CONTENTS

Part I Statement of Facts

1. Introduction
2. The Parties
3. Background to Rail Accessibility in Canada
   1. Legislative history
   2. The Rail Code
4. Renaissance Rail Cars
5. The Undue Obstacle Application
6. Network Defence
7. Cost of Retrofitting the Renaissance cars
8. Agencys Preliminary Decision
9. Show Cause Process
10. Agencys Final Decision
11. Decisions of the Federal Court of Appeal

Part II Questions in Issue

Part III Statement of Argument

A. What is the Correct Interpretation of Part V of the CTA?

1. Part V of the CTA must be interpreted as human rights legislation
   1. CTA must be interpreted consistently with Charter and other human rights legislation
   2. The legislations context indicates Part V is specialized human rights legislation
      1. Legislative history
      2. CTA provisions
      3. The statement of policy objectives
      4. Concurrent jurisdiction with the CHRC
      5. Agency expertise
         
         
2. Substantive equality principles must underpin Part V of the CTA
   1. True inclusiveness
   2. Consequences of not advancing substantive equality
      1. Burden on applicants
      2. Rendering Part V of the CTA redundant
         
         
3. The standard of undue is high

B. The Agencys process for hearing complaints must be fair

1. Onus and the duty to issue invitations
2. Deference to the Agencys findings

C. The Agencys undue obstacle decision was not patently unreasonable

D. Conclusion

Part IV - Submissions Concerning Costs

1. Principles of access to justice and mitigating inequality between applicants
2. This case and appeal have been brought in the public interest
3. The appellant is a public interest litigant
4. The Federal Court of Appeal erred in its costs decision
5. Costs requested

Part V Order Requested

Part VI Table of Authorities

Part VII Statutes/Regulations/Rules

Court File No. 30909

IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE FEDERAL COURT OF APPEAL)

BETWEEN:

COUNCIL OF CANADIANS WITH DISABILITIES

Appellant
(Respondent in the Federal Court of Appeal)

- and -

VIA RAIL CANADA INC.

Respondent
(Appellant in the Federal Court of Appeal)

APPELLANT'S FACTUM

PART I - STATEMENT OF FACTS

1. Introduction

1. This case will answer the question of whether formal or substantive accommodation will be made for equality seekers under specialized human rights legislation, such as the "undue obstacle" jurisdiction of the Canadian Transportation Agency ("the Agency") under Part V of the Canadian Transportation Act S.C. 1996, c. 10 (the CTA).
2. This Court decided in the case of British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.) ("Meiorin"),[1999] 3 S.C.R.3 that the duty to accommodate imposes a primary obligation to systemically address the sources of discrimination. In the companion case of British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) ("Grismer"), [1999] 3 S.C.R. 868 this Court held that discriminatory barriers to equality were to be modified and made as "as inclusive as possible", so that systemic discrimination is not perpetuated.
3. The decision under appeal does the exact opposite. Its "network analysis" requires that discriminatory barriers only be modified as a last resort, and after all other possible accommodations have been rejected, contrary to fundamental human rights values.
4. Under human rights law, the onus for demonstrating that making the most inclusive accommodation would cause "undue hardship" is on the respondent. Once the discriminatory obstacle has been identified, it is the respondent which is best situated to call evidence of "undueness".
5. The decision under appeal removes this onus from the respondent, holding that as a matter of procedural "fairness" there is no obligation upon a respondent to call evidence, unless and until the Agency expressly 'invites" it to do so. By thus relieving the respondent, it imposes responsibility upon the Agency for conducting, at minimum, a three-stage or trifurcated hearing. Only if it has determined that the obstacle is undue in light of the network, and that there is no remedy within the network, is a review to be conducted of the undueness of the actual obstacle itself. If adopted into general human rights law, it would make systemic discrimination cases unworkable for applicants, allow respondents to withhold evidence they alone can produce, and place tribunals in the "Catch 22" dilemma of identifying a remedy before they can decide on liability.

2. The Parties

6. The Council of Canadians with Disabilities is the national cross-disability advocacy organization. The Council of Canadians with Disabilities ("CCD") was founded in 1976 and advocates at the national level to improve the status of women and men living with disabilities by eliminating inequalities and discrimination. CCD is composed of representatives from provincial disability organizations across Canada as well as major national disability organizations. CCD has appeared as an intervener before the Court in numerous human rights and Charter cases.

Appellant's Record, Vol. 1, Tab 2 [CTADecision No. 175-AT-R-2003 at i]
Appellant's Record, Vol. 19, Tab 219, pp. 3296-3297 [Affidavit of Laurie Beachell, sworn August 3, 2004 at para. 6]

7. VIA Rail Canada Inc. ("VIA"), which was established in 1977, has been a Crown corporation since 1978 and is responsible for Canada's national passenger rail transportation. VIA was incorporated under the Canadian Business Corporations Act, R.S.C., 1985, c. C-44, with the Government of Canada as the corporation's sole shareholder and reports to the Government of Canada through the Minister of Transport.

Appellant's Record, Vol. 1, Tab 2 [CTA Decision No. 175-AT-R-2003 (CTA) at i]

3. Background to Rail Accessibility within Canada

(a) Legislative History

8. 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 travel, get jobs or live independently in the community.

Appeal Record, Vol. 7, Tab 133 [CCD Submissions (January 30, 2002)]

9. The earliest systemic discrimination cases upholding the human rights of persons with disabilities were decided by the Canadian Transportation Commission. The landmark case of Clariss Kelly v. VIA Rail Canada Inc. resulted in the removal of a variety of barriers to persons in wheelchairs traveling safety and in dignity. In a subsequent decision, it was decided the Commission had to adhere to Charter equality values when exercising its jurisdiction over airfares for persons with disabilities.

Kelly v. VIA Rail Canada Inc. (1980), 1 C.H.R.R. D/97 (C.T.C.) [Appellant's Book of Authorities, Tab 3]
Report of the Special Panel of the Air Transport Committee of the Canadian Transport Commission on the Subject of a Special Air Fare Policy for the Attendants of Disabled Passengers and for Additional Seats for Disabled and Other Passengers (Ottawa: October 1986) [Appellant's Book of Authorities, Tab 35]

10. Human rights jurisprudence in the mid-1980s was just beginning to address adverse effects discrimination and the duty to accommodate.

Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536 at paras. 18 and 23 [Appellant's Book of Authorities, Tab 4]

11. In 1986, the government announced its intention to draft a new national transportation act to "deregulate" the transportation sector. The initial Bill contained only an unenforceable statement that persons, including persons with disabilities, were not to face undue obstacles. The disabled community was intent on ensuring the legislation would provide the protection offered under human rights legislation and more. The disability community urged Parliament to ensure that the National Transportation Commission (now the Agency) would have the authority to remove undue obstacles to the mobility of persons with disabilities. The concept of undueness was specifically related to those protections contained in the Charter, and the concept of equal benefit contained in section 15(1). The term "obstacle" was introduced to ensure that the legislation would include not only policies but also structures (e.g. trains). The disabled community and Members of Parliament sought to ensure that human rights issues concerning the accessibility of transportation services would be expeditiously adjudicated by a specialized tribunal that was equipped to address systemic obstacles to the participation of persons with disabilities.

House of Commons, Submissions of the representatives of ARCH, BOOST and March of Dimes before the Standing Committee on Transport, 2nd session of the 223d Parliament at 22:52 to 22:60 (23 March 1987) [CCD's Book of Authorities, Tab 36]
House of Commons Debates, (2 February 1987) at 2983 (Mr. Carlo Rossi) [CCD's Book of Authorities, Tab 37]
House of Commons Debates, (3 February 1987) at 3040 to 3041 (Mr. Neil Young) [CCD's Book of Authorities, Tab 37]
Canada, Bill C-18, An Act Respecting National Transportation, 2nd Sess., 33rd. Parl., November 4, 1986. First Reading, s. 3 [CCD's Book of Authorities, Tab 45]

12. In 1987, the National Transportation Act, 1987 (the predecessor to the Canada Transportation Act) was passed. It removed most of the former Commission's regulatory jurisdiction, but explicitly ensured the continuation of its jurisdiction over accessibility for persons with disabilities. The Honourable John Crosbie (then Mister of Transport) explained the decision to use transport rather than human rights legislation:

The Government is also ensuring that disabled persons have access to the transportation system. That commitment is reflected in the policy statement contained in Clause 3 of the Bill. A year ago the Government announced its intention to fulfill this commitment through human rights legislation. Transport officials and the Advisory Committee on Transportation of Disabled Persons have been drafting accessibility standards to be adopted as regulations. Representations were made to me and to the standing committee arguing that transportation legislation rather than human rights legislation should be used to enforce these accessibility standards, and I have agreed.
… the disabled will not lose any rights they now have for access to the transportation system. The Bill has been amended to remove any uncertainty on this point.

House of Commons Debates, (17 June 1987) at 7272 to 7273 (Hon. John C. Crosbie)
National Transportation Act, 1987, R.S.C. 1985, c. 34, s. 3, 35 (1) (5) (6) (7) [as assented to 28 August, 1987] [Appellant's Book of Authorities, Tab 47]

13. The initial Act fell short of the access requirements of persons with disabilities and it was fundamentally amended the very next year. On June 17, 1988, preceding the passage of the amendment to the NTA, 1987, theMinister of Transport told the House of Commons:

It is truly a pleasure to rise in the House today and introduce for second reading a Bill which provides the means for ensuring that Canadians with disabilities are provided fair and dignified access to our national transportation system ... Accessible transportation is key to providing persons with disabilities the opportunity for full integration into the mainstream of Canadian life ... The laws of a country are a reflection of the values of its people. I invite Hon. Members today to join with the Government in this co-operative effort so that this legislation can be placed alongside the other laws of Canada that reflect its tradition for protecting human rights and values in Canada. [Emphasis added]

Appellant's Record, Vol. 1, Tab2, p. 29 [CTA Decision No. 175-AT-R-2003 (March 2003) at 15]
An Act to Amend the National Transportation Act, 1987, C. 19 (4th Supp.) [CCD's Book of Authorities, Tab 47]

14. In 1996, the National Transportation Policy, was strengthened to refer to the importance of "effective transportation services accessible to persons with disabilities" in its introductory paragraph as well as sub clauses. The Agency's power to conduct inquiries on its own motion was removed, meaning it could only act on application.

Canada Transportation Act, S.C. 1996 c. 10, s. 5, 170 to 172

15. Thus, the legislative provisions at issue in the within appeal constitute specialized human rights legislation governing the accessibility of all transportation under federal jurisdiction.

NATIONAL TRANSPORTATION POLICY

Declaration
5. It is hereby declared that a safe, economic, efficient and adequate network of viable and effective transportation services accessible to persons with disabilities and that makes the best use of all available modes of transportation at the lowest total cost is essential to serve the transportation needs of shippers and travellers, including persons with disabilities, and to maintain the economic well-being and growth of Canada and its regions and that those objectives are most likely to be achieved when all carriers are able to compete, both within and among the various modes of transportation, under conditions ensuring that, having due regard to national policy, to the advantages of harmonized federal and provincial regulatory approaches and to legal and constitutional requirements,

1. the national transportation system meets the highest practicable safety standards,
2. competition and market forces are, whenever possible, the prime agents in providing viable and effective transportation services,
3. economic regulation of carriers and modes of transportation occurs only in respect of those services and regions where regulation is necessary to serve the transportation needs of shippers and travellers and that such regulation will not unfairly limit the ability of any carrier or mode of transportation to compete freely with any other carrier or mode of transportation,
4. transportation is recognized as a key to regional economic development and that commercial viability of transportation links is balanced with regional economic development objectives so that the potential economic strengths of each region may be realized,
5. each carrier or mode of transportation, as far as is practicable, bears a fair proportion of the real costs of the resources, facilities and services provided to that carrier or mode of transportation at public expense,
6. each carrier or mode of transportation, as far as is practicable, receives fair and reasonable compensation for the resources, facilities and services that it is required to provide as an imposed public duty,
7. each carrier or mode of transportation, as far as is practicable, carries traffic to or from any point in Canada under fares, rates and conditions that do not constitute,
   1. an unfair disadvantage in respect of any such traffic beyond the disadvantage inherent in the location or volume of the traffic, the scale of operation connected with the traffic or the type of traffic or service involved,
   2. an undue obstacle to the mobility of persons, including persons with disabilities,
   3. an undue obstacle to the interchange of commodities between points in Canada, or
   4. an unreasonable discouragement to the development of primary or secondary industries, to export trade in or from any region of Canada or to the movement of commodities through Canadian ports, and
8. each mode of transportation is economically viable,

and this Act is enacted in accordance with and for the attainment of those objectives to the extent that they fall within the purview of subject-matters under the legislative authority of Parliament relating to transportation.

PART V
TRANSPORTATION OF PERSONS WITH
DISABILITIES

Regulations
170. (1) The Agency may make regulations for the purpose of eliminating undue obstacles in the transportation network under the legislative authority of Parliament to the mobility of persons with disabilities, including regulations respecting

1. the design, construction or modification of, and the posting of signs on, in or around, means of transportation and related facilities and premises, including equipment used in them;
2. the training of personnel employed at or in those facilities or premises or by carriers;
3. tariffs, rates, fares, charges and terms and conditions of carriage applicable in respect of the transportation of persons with disabilities or incidental services; and
4. the communication of information to persons with disabilities.

Coordination
171. The Agency and the Canadian Human Rights Commission shall coordinate their activities in relation to the transportation of persons with disabilities in order to foster complementary policies and practices and to avoid jurisdictional conflicts.

Inquiry re obstacles to persons with disabilities
172. (1) The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.

Compliance with regulations
(2) Where the Agency is satisfied that regulations made under subsection 170(1) that are applicable in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue obstacle to the mobility of persons with disabilities.

Remedies
(3) On determining that there is an undue obstacle to the mobility of persons with disabilities, the Agency may require the taking of appropriate corrective measures or direct that compensation be paid for any expense incurred by a person with a disability arising out of the undue obstacle, or both.

Canada Transportation Act, S.C. 1996 c. 10, s. 5, 170 to 172

(b) The Rail Code

16. In addition to the accessibility regulations it initiated, in the mid-1990s, 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").

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), ["Rail Code"] [CCD's Book of Authorities, Tab 38]
Appellant's Record, Vol. 1, Tab 2, p. 34 [CTADecision No. 175-AT-R-2003 (March 2003) at 20]

17. The Rail Code defines accessibility by incorporating the Canadian Standards Association Standard CAN/CSA-B651-95 Barrier-Free Design, ("CSA Standards"). The CSA Standards describe the space required by people in their personal wheelchairs to move, turn around, transfer to use washrooms, etc. They prescribe a standard wheelchair size ("footprint") as well as corresponding door and aisle widths, turning diameters and washrooms.

Appellant's Record, Vol. 1, Tab 2, p. 38 [CTA Decision No. 175-AT-R-2003 (March 2003) at 23-24]
Rail Code at 5 [CCD's Book of Authorities, Tab 38]
Appellant's Record, Vol. 11, Tab 154, pp. 2089-2095 [Expert Report of David Harding, Motion Specialties]
Appellant's Record, Vol. 11, Tab 154, pp. 2082-2088 [Expert Report of Ringaert]

18. The Rail Code intended that persons using standard sized wheelchairs or smaller could remain in their personal wheelchairs. Coach and sleeper cars that permitted this were deemed "wheelchair accessible". The Agency decided that remaining in one's personal wheelchair is a matter of dignity and safety. Some wheelchair users are unable to travel if required to transfer out of their personal chairs.

Rail Code [CCD's Book of Authorities, Tab 38]
Appellant's Record, Vol. 1, Tab 2, pp. 39-41 [CTA Decision No. 175-AT-R-2003 (March 2003) at 25-27]

19. 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.

Appellant's Record, Vol. 19, Tab 219, p. 3298 [Affidavit of Laurie Beachell sworn August 3, 2004 at para. 9, Exhibits "A" through "D"]

20. The Rail Code standards are not regulations but are considered to be advisory. However, the President and CEO of VIA publicly committed VIA to complying with the Rail Code when it came into effect in 1998.

Appellant's Record, Vol. 1, Tab 2, pp. 35, 59 [CTA Decision No. 175-AT-R-2003 (March 2003) at 20-21, 45]

21. VIA had previously retrofitted their aging fleet of coach cars. The retrofitted VIA coaches had accessible washrooms, tie-downs and turning areas, but had narrow external doors that fell below Rail Code standards for new rail cars. Across VIA's entire "network" of "existing" rail cars, there was not a single "wheelchair accessible coach car" or "wheelchair accessible sleeping car". There have been no major purchases of trains in Canada since accessibility codes for buildings, and modes of transportation started to be introduced. People with disabilities believed trains purchased after the introduction of the Rail Codewould finally be wheelchair accessible.

Appellant's Record, Vol. 1, Tab 2, pp. 52-53, 59 [CTA Decision No. 175-AT-R-2003 (March 2003) at 38-39, 45]
Appellant's Record, Vol. 9, Tab 142-1 [Wheelchairs Rev. February 4, 2000 found in VIA Submissions, (February 15, 2002)]
Appellant's Record, Vol. 19, Tab 219, pp. 3303, 3304 [Affidavit of Laurie Beachell sworn August 3, 2004 at paras. 28, 30]

22. VIA 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".

Appellant's Record, Vol. 14, Tab 210, p. 2628 [Letter from Campion to the Agency (August 21, 2003)]

4. Renaissance Rail Cars

23. In April 2000 Minister of Transportation David Collenette informed representatives of Canadians with disabilities present at a meeting of his Advisory Committee on Accessible Transportation (hereinafter "ACAT") that the government of Canada was providing VIA Rail Canada Inc. (hereinafter "VIA") with $400 million of capital funding with which to purchase its next generation of passenger rail cars. Mr. Collenette assured ACAT that the new trains would be fully accessible to persons with disabilities.

Appellant's Record, Vol. 19, Tab 219, pp. 3297-3298, 3306; Vol. 21, Tab 219-AA, p. 3772 [Affidavit of Laurie Beachell sworn August 3, 2004 at paras. 8, 37, Exhibit AA]

24. VIA decided to purchase the "Renaissance" cars - 139rail cars, still in various stages of assembly, that had been rejected for use in the United Kingdom, and for which there was a limited market because they were not "wheelchair accessible". VIA considered the cars to be a "bargain" since to purchase comparable cars would have cost it an additional $250 million.

Appellant's Record, Vol. 2, Tab 9, p. 288 [FCA Reasons for Judgement at paras. 2, 100]
Appellant's Record, Vol. 19, Tab 219, pp. 3297-3298, 3302, 3319-3320, 3321 [Affidavit of Laurie Beachell sworn August 3, 2004 at paras. 8, 23, 73, 76]
Appellant's Record, Vol. 15, Tab 215 at 2735 [Marginson affidavit sworn December 5, 2003 at para. 24]

25. The Renaissance cars were designed so that persons would have to transfer out of their personal wheelchair. Neither the coach cars nor the sleeper compartments were "accessible". Both had entrances that were too narrow to admit a person using a personal wheelchair. Neither had a place where a wheelchair could be turned, a usable wheelchair tie-down nor an accessible washroom. In addition the entry stairs and coach seat armrests presented an obstacle for ambulatory persons with a mobility disability, and there was no place to seat a person accompanied by a service animal.

Appellant's Record, Vol. 1, Tab 2, p. 18-19 [CTA Decision No. 175-AT-R-2003 (March 2003) at 4-5]

5. The Undue Obstacle Application

26. When it learned the trains were inaccessible to persons with disabilities, CCD brought an application to the Agency pursuant to section 172 of the Act. VIA responded by bringing two successive applications for leave to appeal disputing the Agency's decision that it had jurisdiction to consider and decide CCD's application. The FCA dismissed both applications.

Appellant's Record, Vol. 2, Tab 10 [CCD's application to the Agency (December 4, 2000]
Appellant's Record, Vol. 4, Tabs 62, 72 [May 1, 2001 and June 8, 2001 orders of the FCA dismissing leave to appeal]

27. The Agency conducted a two year written hearing, concluded at VIA's request with written and oral closing submissions by the parties. VIA raised no issue about the fairness of this hearing. Both parties were free to submit any and all evidence that was relevant to their case. No evidence tendered was excluded by the Agency.

Appellant's Record, Vol. 6, Tab 116 [Letter from Camption to Agency (November 9, 2001)]

28. CCD supplied detailed evidence of the obstacles the new train cars represented for persons with disabilities. Its evidence included statements by two persons with disabilities who had been permitted to view the trains, along with expert reports from a professor specializing in inclusive design, the president of a company that manufactures and sells wheelchairs, and a rehabilitation engineer. On the advice of a professional engineer specializing in rail car design, CCD provided a specific proposal for making the Renaissance cars accessible.

Appellant's Record, Vol. 11, Tab 154, pp. 2082-2088 [Ringaert]; pp. 2089-2095 [Harding]; pp. 2096-2099 [Ryan]
Appellant's Record, Vol. 23, Tab 227-19 [Woollam, Jan 22, 2002]; Tab 227-22 [McInnis, October 30, 2001]; Tab 227-23 [Ron Ross]; Tab 227-24 [Lemieux-Brassard]
Appellant's Record, Vol. 24, Tab 227-27 [Barry McMahon]
Appellant's Record, Vol. 7, Tab 109 [Woollam, October 2001]
Appellant's Record, Vol. 12, Tab 183 [Woollam, October 17 2002]
Appellant's Record, Vol. 21, Tab 221-C [Woollam, August 14, 2003]

29. While there was never an issue of CCD not responding to interrogatories or providing requested information, the Agency issued repeated decisions concerning VIA's refusal to respond to its orders.

Appellant's Record, Vol. 19, Tab 219, pp. 3308-3310 [Affidavit of Laurie Beachell, sworn August 3, 2004, para. 41]

6. Network Defense

30. VIA based its defense on a "network argument". It proposed that its existing rail network provided sufficient accommodation for persons with disabilities, and therefore the obstacles in the Renaissance cars could not be considered "undue".

Appellant's Record, Vol. 1, Tab 2, pp. 50-51 [CTA Decision No. 175-AT-R-2003 (March 2003) at 36-37]

31. Rather than indicate any accommodation that would redress obstacles actually found in the Renaissance cars, VIA "simply listed the range of options that it made generally available to accommodate persons with disabilities". It proposed no accommodation whatsoever beyond continuing to make its existing railcars available.

Appellant's Record, Vol. 1, Tab 2, p. 52 [CTA Decision No. 175-AT-R-2003 (March 2003) at 38]
Appellant's Record, Vol. 2, Tab 9, p. 338 [FCA Reasons for Judgement at paras. 112-113]

32. With regards VIA's network, the Agency was aware the Renaissance cars "will be the only cars in operation on some of VIA's routes" and that VIA's existing fleet did not provide any wheelchair-accessible sleeper compartments. It was aware that none of VIA's existing coach cars were "wheelchair-accessible" (eg. door widths were 12-21% too narrow to be accessible to a person in a personal wheelchair). In response to a CCD interrogatory concerning those unable to use the Renaissance cars, VIA indicated it would "not provide any compensation to any travelers or persons who cannot be accommodated". The Agency was also aware of the new rail cars' features designed to benefit other persons with disabilities, and the fact that persons with disabilities were a minority within society, and underrepresented amongst VIA's passengers. Further, the Agency was aware that the Renaissance trains would increase VIA's fleet by approximately one-third. The Agency was fully apprised of all information relevant to VIA's network defense before it made its first Decision.

Appellant's Record, Vol. 1, Tab 2, pp. 50-54 [CTA Decision No. 175-AT-R-2003 (March 2003) at 36-40]
Appellant's Record, Vol. 7, Tab 125, p. 1137 [VIA Response to Interrogatories (November 30, 2001 at 15]

7. Cost of Retrofitting the Renaissance Cars

33. VIA made the strategic decision not to volunteer information concerning costs of making the Renaissance trains accessible. CCD posed an interrogatory about costs of making the trains more accessible. VIA refused to answer. When specifically directed by the Agency to respond to the interrogatory VIA again refused, saying the cost of preparing the estimate would be prohibitive and it would take 45 days to produce.

Appellant's Record, Vol. 7, Tab 126, p. 1189 [CTA Decision LET-AT-R-5-2002 (January 8, 2002)]; Tab 129, p. 1217 [Letter from Campion to Agency (January 14, 2002)]

34. The Agency relented and permitted VIA to avoid answering most of CCD's questions about the costs during the first stage of hearing process, over CCD's objections. The Agency ruled that "depending on the nature of the submissions filed by the parties and particularly VIA, the Agency may determine that some of these interrogatories have become relevant to its investigation and direct VIA to provide more detailed answers".

Appellant's Record, Vol. 7, Tab 126 [CTA Decision No. LET-AT-R-5-2002 (January 8, 2002)]

8. Agency's Preliminary Decision

35. The Agency issued a decision on March 27, 2003. The parties had every expectation it would be the final ruling. The Agency reaffirmed its position that "Part V of the CTA is by its nature human rights legislation," and that "[t]he purpose of Part V of the CTA is to ensure that persons with disabilities, a recognized minority group, are not discriminated against within the Federal transportation network". As per the FCA's decision in VIA Rail Canada Inc. v. National Transportation Agency ["Lemonde"], the Agency considered the National Transportation Policy contained in section five of the CTA, when deciding whether the obstacles found were "undue".

Appellant's Record, Vol. 1, Tab 2, pp. 29-32, 45-50 [CTA Decision No. 175-AT-R-2003 (March 2003) at 15-18, 31-36]
VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 at para. 39 (C.A.)

36. It responded to VIA's submission that a lack of evidence concerning its network and the costs of modifying the rail cars prevented the Agency from deciding the case, when it stated "[t]he Agency is of the opinion that factors pertaining to carriers must be put on the record by them as they relate to their specific interest and because carriers are in the best position to identify and explain those factors."

Appellant's Record, Vol. 1, Tab 2, p. 32 [CTA Decision No. 175-AT-R-2003 (March 2003) at 18]

37. The Agency found that VIA proposed no new accommodations across its network, and its "existing fleet or network" did not address the obstacles that it identified in the Renaissance cars.

Appellant's Record, Vol. 1, Tab 2, pp. 38-40 [CTA Decision No. 175-AT-R-2003 (March 2003) at 52-54]

38. The Agency identified 25 obstacles to the mobility of persons with disabilities in the Renaissance cars, of which eight were found not to be undue. It found that 14 of the remainder were undue on a "preliminary" basis, and deferred consideration of the "undueness' of the remaining three pending a final determination of those found to be undue. By "preliminary" the Agency meant that its decision concerning undueness would be final, subject to any further evidence and arguments VIA chose to tender in response to its show cause direction. It added this additional stage to the hearing in order to allow VIA to focus on the obstacles it had found were potentially undue. Before making any final orders it decided to give VIA a further opportunity to submit evidence about the technical feasibility and cost of removing the obstacles. It was also directed to provide verifiable evidence of its inability to afford the costs that would result from an order to remove the obstacles. The only specific design that it was directed to cost was that proposed by CCD. VIA was given an initial 60 days to assemble the requested evidence.

Appellant's Record, Vol. 1, Tab 2, pp. 17-19, 156-160 [CTA Decision No. 175-AT-R-2003 (March 2003) at 3-5, 143-147]

9. Show Cause Process

39. VIA responded to portions of the Agency's show cause order, indicating that removing three of the obstacles would not be possible, and that "the total cost and lost revenue of completing the work identified in the show cause directions is over $35 million". It acknowledged the estimates did not come from the sources identified by the Agency in its show cause direction, but insisted "VIA Rail states that the costs above are reasonable in its experience".

Appellant's Record, Vol. 13, Tab 193 [Letter from Campion to Agency (May 26, 2003)]

40. At this point the Agency became aware that Transport Canada had ruled in October 2002 that the Renaissance cars did not meet Canadian safety standards. Within 60 days VIA had an engineering firm called Pro-Sphere design and cost four options to bring it into compliance, and submitted this information to Transport Canada. These design/options and costings were produced and accepted as evidence by the Agency. Option Three involved making the coach car wheelchair accessible. The Agency recognized that this was the "solution CCD has specifically proposed to remedy a number of concerns in these particular cars." i.e. the option VIA had been directed to cost in the Agency's March 2003 Preliminary Decision. The Agency gave VIA an additional 60 days to respond to its original show cause order and additionally requested that it show cause why it could not implement Option Three.

Appellant's Record, Vol. 14, Tab 195, p. 2472 [CTA Decision No. Let-AT-R-128-2003 (May 30, 2003)]; Tab 196, pp. 2488-2492 [Options presented to Transport Canada]; Tab 197, esp. p. 2497, 2503 [CTA Decision No. LET-AT-R-130-2003 (June 9, 2003)]

41. Noting that it had filed a third application for leave to appeal the Agency's jurisdiction, VIA responded "Neither the Agency nor VIA Rail has the expertise or resources to adequately complete this process in the time allotted or at all". It never indicated how much time it would require to respond, nor did it at this or at any other time request an extension of time within which to do so. Instead it stated, "[t]his entire design process cannot be completed in an adversarial atmosphere. It requires an iterative process, which only VIA Rail and its advisors can complete. This is uniquely in the management control of VIA". It submitted and adopted the expert costings of Option Three. They confirmed that making the coach car wheelchair accessible and complying with Transport Canada safety requirements would cost approximately twice as much as VIA's preferred Option One ($4.8 million versus $2.3 million).

Appellant's Record, Vol. 14 Tab 196, pp. 2534, 2538, 2540 [Options presented to Transport Canada]; Tab 200 [Letter from Campion to Agency (July 14, 2003)]

10. Agency's Final Decision - October 29, 2003

42. In its Final Decision, the Agency found the obstacles upon which VIA was directed to show cause to be "undue", with the exception of those VIA indicated would not be feasible to remove. The Agency indicated it was "not convinced that there were financial or complex administrative reasons why VIA cannot comply with the Agency's directions to show cause", noting "VIA was able to develop four design options to present to Transport Canada". It addressed VIA's cost estimate of $35 million in detail, finding the estimate to be "overstated". It found the net additional cost of implementing Option Three as opposed to Option One would be between $673, 400 and $1, 712,000, indicating that only 13 of the 47 coach cars need be modified - one per train "consist".

Appellant's Record, Vol. 2, Tab 3, pp. 185-186, 188-194, 202-206 [CTA Decision No. 620-AT-R-2003 (October, 2003) at 2-4, 6-12, 20-24]

43. The Agency ordered VIA to: develop plans and a timetable to make the coach cars wheelchair-accessible based on VIA's Option Three design; make minor modifications to the sleeper compartment in the service car; remove obstacles for ambulatory people with mobility disabilities in the coach arm rests and closed stair risers; and to ensure a space is provided on the coach cars for persons who travel with service animals.

Appellant's Record, Vol. 2, Tab 3, pp. 252-253 [CTA Decision No. 620-AT-R-2003 (October, 2003) at 70-71

11. Decisions of the Federal Court of Appeal

44. VIA appealed the Agency's Decisions and sought a stay of the same. In support of its application for a stay, within 60 days of the Agency's Final Decision, VIA produced a new costing of removing the obstacles confirmed as undue. By order of Malone J.A., VIA was permitted to adduce this fresh evidence for the purposes of the appeal proper. CCD argued the information was: discoverable before the end of the hearing appealed from; not credible and was not practically conclusive of an issue on the appeal. Without elaboration, Malone J.A. held that he was "satisfied that special circumstances exist in this appeal, that, in the interests of justice, permit fresh evidence to be presented on a question of fact so as not to leave the Court in any doubt as to the surrounding circumstances". Malone J.A. did not address the Agency's factual finding that there were no financial or complex administrative reasons why VIA could not have produced the information in response to the Agency's "show cause" order. Malone J.A. awarded CCD and the Agency their costs of the motion, in any event of the cause.

Appellant's Record, Vol. 2, Tab 4 [VIA Rail Canada Inc. v. Canadian Transportation Agency and Council of Canadians with Disabilities (19 December 2003), T-2311-03 (Federal Court Trial Division)]
Appellant's Record, Vol. 2, Tab 7, p. 270 [VIA Rail Canada Inc. v. Canadian Transportation Agency and Council of Canadians with Disabilities (13 July 2004), A-238-04 (FCA)

45. The FCA dismissed VIA's appeal with regards to the Agency's jurisdiction to hear CCD's complaint and reference the Rail Code, but otherwise granted the appeal. The FCA returned the matter back to the Agency for reconsideration on the basis that: (1) it consider VIA's network both in determining undue obstacle and in determining remedy and (2) fairness dictated the Agency "invite" VIA to provide further costing evidence in addition to that previously provided and that the Agency "invite" VIA to provide further information about its network.

Appellant's Record, Vol. 2, Tab 9 [FCA Reasons for Judgement, paras. 30, 34, 35, 43, 64, 109]

46. The entire panel found no fault with the Agency's conclusion that the Renaissance cars contained 14 obstacles to the mobility of persons with disabilities.

Appellant's Record, Vol. 2, Tab 9 [FCA Reasons for Judgement]

47. The plurality held that before considering the undueness of the obstacles themselves, the Agency must: (1) determine whether there is an obstacle to the mobility of persons with disabilities; (2) examine the whole network of the transportation service provider with a view to determining whether the network itself provides relief such that the obstacle cannot said to be undue; (3) if the network does not provide relief, consider the possible accommodations within the network (which might mean addressing the physical obstacle itself, but not necessarily) which could eliminate or alleviate the undue obstacle. Examples of possible "accommodations," proposed by the court included the occasional use of older cars on routes where the new trains would otherwise have been used exclusively, and compensation for those who could not ride the Renaissance cars for travel on another mode of transportation, such as bus or airplane.

Appellant's Record, Vol. 2, Tab 9 [FCA Reasons for Judgement at paras. 40, 62- 64 and 108-110]

48. According to the plurality of the court below, the term "undue obstacle" is specifically connected to the network and that a determination of "undueness" within the network must balance all of the various interests referred to in section 5 (the National Transportation Policy).

Appellant's Record, Vol. 2, Tab 9 [FCA Reasons for Judgement at para. 36]

49. The concurring justice found the Agency considered the network arguments advanced by VIA, and based on this evidence reached a decision which was not patently unreasonable. He further concluded that the network evidence submitted by VIA was "unsatisfactory," and by reason of its having intentionally withheld information "VIA was in part at least the author of it's own misfortune".

Appellant's Record, Vol. 2, Tab 9 [FCA Reasons for Judgement at paras. 119-120 and 107, 103]

50. Both the plurality and the concurring justices held that after issuing its preliminary decision, the Agency was obliged as a matter of fairness to "invite" VIA to make further submissions on how its network could accommodate those for whom the Renaissance trains constituted an obstacle. A further hearing would then be held to decide whether the obstacles were undue in light of possible network accommodations

Appellant's Record, Vol. 2, Tab 9 [FCA Reasons for Judgement, paras. 58 and 108]

51. Only after conducting the stage-two hearing and ruling that the network was unable to accommodate persons with disabilities would the Agency be entitled to "invite" submissions from VIA on the cost and feasibility of modifying the Renaissance rail cars as one potential option for addressing the undue obstacle. Before the Agency could reach any conclusions about whether the obstacles in the Renaissance cars were themselves undue, it therefore was required as a matter of fairness to conduct a trifurcated hearing.

Appellant's Record, Vol. 2, Tab 9 [FCA Reasons for Judgement, paras. 73 and 125-128]

PART II - QUESTIONS IN ISSUE

1. What is the correct interpretation of Part V of the CTA?
   1. Part V of the CTA must be interpreted as human rights legislation
   2. Substantive equality principles underpin Part V of the CTA
   3. The standard of "undue" is high
      
      
2. What constitutes a fair Agency process under Part V of the CTA?
   1. Onus and the duty to issue "invitations"
   2. Deference to the Agency's findings
      
      
3. Was the Agency's undue obstacle decision patently unreasonable?

PART III - STATEMENT OF ARGUMENT

A. What is the correct interpretation of Part V of the CTA?

1. Part V of the CTA must be interpreted as Human Rights Legislation

52. The decision of the FCA fails to recognize that Part V of the CTA is human rights legislation.
53. In determining the meaning to be afforded to legislative provisions this Court has held that "it is appropriate to consider the legislative context [which] includes the other provisions of the law, related statutes, the objective of both the law and the specific provision, as well as the circumstances which led to the drafting of the text".

Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Broisbriand (City), [2000] 1 S.C.R. 665 at para. 32 [CCD's Book of Authorities, Tab 5]

(a) The CTA must be interpreted consistently with the Charter and other human rights legislation

54. Human rights law is "public and fundamental law of general application. If there is a conflict between this fundamental law and other specific legislation, unless an exception is created, the human rights legislation must govern". When a statutory provision is open to more than one interpretation, it must be interpreted consistently with human rights principles. Absent a clear legislative pronouncement or express and unequivocal statutory language to the contrary Decision-makers must be guided by and bound by human rights principles.

Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536 at para. 12 [CCD's Book of Authorities, Tab 4]
Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145 at pp. 5 to 6 (QL) [CCD's Book of Authorities, Tab 6]
Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150 at para. 8 citing Monnin C.J.M of the Manitoba Court of Appeal [CCD's Book of Authorities, Tab 7]
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Broisbriand (City), [2000] 1 S.C.R. 665 at para. 42 [CCD's Book of Authorities, Tab 5]
Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504at para. 36 [CCD's Book of Authorities, Tab 8]
Ruth Sullivan, Introduction to Statutory Interpretation, (1997), CHAPTER 2, Section C and Chapter 12, Section C [CCD's Book of Authorities, Tab 39]

55. Consequently, at minimum, the CTA may not undermine those protections provided under other human rights legislation including the Charter. The CTA contains no express provision preventing the Agency from applying Charter and other human rights principles. Indeed, the Agency has the express jurisdiction to decide questions of law, and therefore has the jurisdiction to decide Charter and human rights issues falling within its mandate.

Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504at para. 48 [CCD's Book of Authorities, Tab 5]
Tranchemontagne v. Ontario (Director, Disabilty Support Program), [2004] O.J. No. 3724 at paras. 41, 53-54, 62 (C.A.) [CCD's Book of Authorities, Tab 9]

56. The FCA's approach to interpreting the CTA conflicts with principles espoused in the Charter and other human rights documents. There is no statutory imperative to interpreting the CTA as the FCA has. The equality analysis established by this Court does not run afoul of the National Transportation Policy objectives (and if it did, the Policy would contravene section 15(1) of the Charter).

(b) The legislation's context indicates Part V is specialized human rights legislation

(i) Legislative history

57. The legislation's history is important to its interpretation: "prior enactments may throw some light on the intentions of the legislature in repealing, amending, replacing or adding to it". As noted above, the CTA and its predecessor legislation, The National Transportation Act, 1987 were specifically crafted to include human rights provisions which would provide persons with disabilities a remedy when they encountered undue obstacles to their mobility. The strengthening of the provisions protecting the mobility rights of disabled persons confirms that Part V of the CTA constitutes human rights legislation.

Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Broisbriand (City), [2000] 1 S.C.R. 665 at para. 53 citing Gravel v. City of St.-Léonard, [1978] 1 S.C.R. at para. 53 [CCD's Book of Authorities, Tab 5]

(ii) CTA provisions

58. One of the overriding goals of the CTA, as set out in the National Transportation Policy contained in section five of the Act, is to ensure that transportation services are "accessible to persons with disabilities". "[A]s far as is practicable" each carrier on every route is to ensure that there are no "undue obstacle[s] to the mobility of persons, including persons with disabilities". While the National Transportation Policy lists many comparable objectives, following the 1988 amendment, the Agency was specifically given the authority to initiate regulations and to inquire into and remedy any undue obstacle to the transportation mobility of persons with disabilities.

Canada Transportation Act, S.C. 1996 c. 10, s. 172

59. The FCA's decisions virtually ignore the operative clauses, sections 171 and 172, of the CTA and instead focused on subsection g(ii), the National Transportation Policy. This subsection was in the original Bill, to which the human rights sections were later added. However, the Agency's powers of investigation and remedy stem from section 172 of the legislation. The operative clauses, sections 170-172, which confirm the human rights aspect to the legislation, together with the overriding goal of accessibility, all of which were added to ensure the Act provided access rights, are hardly mentioned.
60. The fact that the CTA refers to an "undue obstacle" rather than an "accommodation to the point of undue CTA should not be the foundation for applying a discrimination analysis inconsistent with the human rights regime.

Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Broisbriand (City), [2000] 1 S.C.R. 665 at paras. 45-47 [CCD's Book of Authorities, Tab 5]
Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703 at para. 40 [CCD's Book of Authorities, Tab 10]

61. Likewise, the appellants submit that differences in terminology should not evoke different discrimination analysis, nor permit a discrimination analysis which is inconsistent with substantive equality principles enunciated by this Court. This is particularly important with regards to Part V the CTA, which was specifically crafted so as to ensure a substantive equality analysis.

(iii) The statement of policy objectives

62. The National Transportation Policy articulated within the CTA states that "as far as practicable" each carrier or mode of transportation is to carry traffic to or from any point in Canada under fares, rates and conditions that do not constitute an undue obstacle to persons including persons with disabilities. "Practicable" is defined in the Canadian Oxford Dictionary as: "1. that can be done or used. 2. possible in practice". It is very different from "practical" or "reasonable".

The Canadian Oxford Dictionary, s.v. "practicable" [CCD's Book of Authorities, Tab 40]
Canada Transportation Act, S.C. 1996 c. 10, s. 5(g)(ii)

63. Thus, under the National Transportation Policy, each carrier is to carry passengers to or from any point in Canada, unless not possible, under fares, rates and conditions that do not constitute an undue obstacle to the mobility of persons with disabilities.
64. Notably, the National Transportation Policy has been amended over the years to increasingly refer to the policy objective of ensuring accessible transportation to persons with disabilities. The policy sets a high priority on eliminating obstacles, makes sure that every route of every carrier is assessed and provides specific factors to be considered when assessing "undueness".

(iv) Concurrent jurisdiction with the Canadian Human Rights Commission

65. Section 171 of the CTA confirms a legislative intent that Part V should be regarded as specialized human rights legislation.

Canada Transportation Act, S.C. 1996 c. 10, s. 171

66. As a result of this provision, the Canadian Human Rights Commission (CHRC) often refers complaints by persons with disabilities relating to the federal transportation network to the Agency for investigation and determination. Under section 41(1)(b) of the CHRA, complainants are expected to exhaust other avenues provided for under an Act of Parliament, where available.

Appellant's Record, Vol. 19, Tab 219, p. 3299 [Affidavit of Laurie Beachell sworn August 3, 2004 at para. 12]
See e.g. Re Decision No. 14-R-1998 (April 2, 1998), Decision No. 148-AT-R-1998 (CTA); Donszelmann v. Air Transat (December 20, 1999) Decision No. 708-AT-A-1999 (CTA); McKay-Panos v. Air Canada (December 12, 2001) Decision No. 646-AT-A-2001 (CTA); Re: Complaint filed by Angela Schreiner with the Canadian Human Rights Commission (May 27, 1997),Decision No. 323-A-1997 (CTA) [CCD's Book of Authorities, Tabs 11-14]

67. Divergent interpretations of their respective human rights mandates would make coordination of their activities highly problematic, and create the jurisdictional conflicts both agencies were directed by section 171 of the CTA to avoid. The FCA's decision would force the Agency to adopt a practice which would be incompatible with human rights law and jurisprudence. It would mean applicants seeking accessible transportation would be referred from the Canadian Human Rights Commission to the Agency in order to receive second-class human rights protection.

(v) The Agency has the expertise and powers to address human rights issues

68. Practically, the Agency is in an ideal position to determine the human rights issues that arise for persons with disabilities in the transportation context. In furtherance of its mandate, the Agency has jurisdiction to: initiate regulations; issue policy guidelines concerning the exercise of its discretion in furtherance of its adjudicative mandate; and advance the broader public interest by deciding individual cases, both small and large, that involve balancing what are often competing interests.

Appellant's Record, Vol. 1, Tab 2, p. 43 (CTA Decision No. 175-AT-R-2003 at 29 (March 2003)]
Ferroequus Railway Co. v. Canadian National Railway Co., [2004] 2 F.C.R. 42 at para. 27 (F.C.A.) [CCD's Book of Authorities, Tab 5]
Capital Cities Communications Inc. v. Canadian Radio-Television Commission, [1978] 2 S.C.R. 141 [CCD's Book of Authorities, Tab 6]

69. In order to exercise its polycentric jurisdiction, the Agency's members may have special expertise, such as the member of the panel that heard the application under appeal who is a professional engineer. The Agency has a staff with special expertise in accessible design for persons with disabilities, engineering, economics and law. They prepare reports which the Agency may adopt as decisions or otherwise use, conduct stakeholder consultations when developing regulations or guidelines and advise the Agency in areas of their expertise.

Canada Transportation Act, S.C. 1996 c. 10, sections 19, 20, 30
Ferroequus Railway Co. v. Canadian National Railway Co., [2004] 2 F.C.R. 42 at paras. 27, 31 (F.C.A.) [CCD's Book of Authorities, Tab 15]
Metropolitan Toronto (Municipality) v. Canadian National Railway Co.), [1998] 4 F.C. 506 at 516-517 (F.C.A.) [CCD's Book of Authorities, Tab 17]
Macaulay and Sprague, Practice and Procedure Before Administrative Tribunals at 14-14 to 14-16 [CCD's Book of Authorities, Tab 41]

70. The Agency has been granted broad, remedial powers in furtherance of its mandate. It is directed to make timely decisions, but also has been granted the jurisdiction to decide whether an issue in an application has crystallized. If it has not, the Agency can issue interim or contingent orders, or even defer issues until a future application. It can review, rescind or vary its decisions when there has been a change of facts or circumstances.

Canada Transportation Act, S.C. 1996 c. 10, sections 27, 28, 29, 172(3)
Ferroequus Railway Co. v. Canadian National Railway Co., [2004] 2 F.C.R. 42 at paras. 27, 31 (F.C.A.) [CCD's Book of Authorities, Tab 15]
McCain Foods Ltd. v. Canada (National Transportation Agency), [1992] 1 F.C.J. No. 1061 [CCD's Book of Authorities, Tab 18]

71. The Agency has the powers necessary for the proper exercise of its jurisdiction including: powers to issue rules governing its procedure; all the powers of the Federal Court to award costs; and, when engaged in an inquiry, the powers of a superior court to investigate and compel production of documents and summon witnesses. It has the power to control its own process, receive written evidence and submissions and conduct oral hearings. The Agency's orders may be made orders of the Federal Court and enforced as such.

Canada Transportation Act, S.C. 1996 c. 10, sections 17, 25, 25.1, 33, 39
Ferroequus Railway Co. v. Canadian National Railway Co., [2004] 2 F.C.R. 42 at paras. 29-30 (F.C.A.) [CCD's Book of Authorities, Tab 15]

72. The Agency's findings of fact on issues within its jurisdiction are binding and conclusive. Its interlocutory and final decisions are appealable to the FCA only with leave, and only on questions of law or jurisdiction.

Canada Transportation Act, S.C. 1996 c. 10, section 31
Ferroequus Railway Co. v. Canadian National Railway Co., [2004] 2 F.C.R. 42 at para. 26 (F.C.A.) [CCD's Book of Authorities, Tab 15]

73. The factual context of this dispute is the purchase and retrofit of rail cars which do not accommodate passengers with disabilities, particularly passengers who require wheelchairs. The factual context, as the FCA confirmed, falls clearly within the realm of the Agency's jurisdiction, expertise and remedial powers.
74. The CTA was crafted in such a manner as to give the Agency the preferred jurisdiction over transportation issues affecting the mobility of persons with disabilities. The factual context for the dispute can be fully explored before the Agency. The Agency is capable of deciding systemic accommodation issues, while enforcing compliance with undue obstacle regulations under the Act. The FCA's "network analysis" is entirely inimical to the development of systemic remedies and if applied to the power to make undue obstacle regulations could serve as a basis for challenging the regulations themselves.

2. Substantive equality principles must underpin Part V of the CTA

75. Whether Part V of the CTA is specialized human rights legislation, or is simply to be interpreted consistently with human rights legislation, it must be interpreted in accordance with substantive equality principles applied to all human rights legislation and Charter equality cases. These principles have evolved and are continuing to evolve. Rights protected must be given their full recognition and effect, and should not be minimized or enfeebled.

British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 at paras. 50 to 53 [CCD's Book of Authorities, Tab 1]
C.N.R. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 114 at para. 24 [CCD's Book of Authorities, Tab 19]

(a) True inclusiveness

76. In Eaton and Brant County Board of Education, while rejecting a section 15 presumption favouring inclusion, this Court readily acknowledged that in most cases it would be the "preferred accommodation". As indicated in Granovsky, what mattered was that "the process…put the focus on substantive equality, not merely formal equality" and that the decision about whether or not inclusion was preferred would be based on the best interests of the person with the disability.

Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 at para. 68 [CCD's Book of Authorities, Tab 21]
Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536 at paras. 23 [CCD's Book of Authorities, Tab 4]
Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703 [CCD's Book of Authorities, Tab 10]

77. With the intention of simplifying the guidelines that structure the interpretation of human rights legislation in Canada, the Court has announced a unified approach to adjudicating discrimination claims under human rights legislation based on a substantive equality model:

"[Those] governed by human rights legislation are now required in all cases to accommodate the characteristics of affected groups within their standards, rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. Incorporating accommodation into the standard itself ensures that each person is assessed according to her or his own personal abilities, instead of being judged against presumed group characteristics."

British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 at para. 19 [CCD's Book of Authorities, Tab 2]

78. The Court explained the reasoning behind this endorsement of inclusiveness versus ad hoc accommodation:

    Under the conventional analysis, if a standard is classified as being "neutral" at the threshold stage of the inquiry, its legitimacy is never questioned. The focus shifts to whether the individual claimant can be accommodated, and the formal standard itself always remains intact. The conventional analysis thus shifts attention away from the substantive norms underlying the standard, to how "different" individuals can fit into the "mainstream", represented by the standard.
    Although the practical result of the conventional analysis may be that individual claimants are accommodated and the particular discriminatory effect they experience may be alleviated, the larger import of the analysis cannot be ignored. It bars courts and tribunals from assessing the legitimacy of the standard itself. Referring to the distinction that the conventional analysis draws between the accepted neutral standard and the duty to accommodate those who are adversely affected by it, Day and Brodsky, supra, write at p. 462:

    The difficulty with this paradigm is that it does not challenge the imbalances of power, or the discourses of dominance, such as racism, ablebodyism and sexism, which result in a society being designed well for some and not for others. It allows those who consider themselves "normal" to continue to construct institutions and relations in their image, as long as others, when they challenge this construction are "accommodated".
    Accommodation, conceived this way, appears to be rooted in the formal model of equality. As a formula, different treatment for "different" people is merely the flip side of like treatment for likes. Accommodation does not go to the heart of the equality question, to the goal of transformation, to an examination of the way institutions and relations must be changed in order to make them available, accessible, meaningful and rewarding for the many diverse groups of which our society is composed. Accommodation seems to mean that we do not change procedures or services, we simply "accommodate" those who do not quite fit. We make some concessions to those who are "different", rather than abandoning the idea of "normal" and working for genuine inclusiveness…
    I agree with the thrust of these observations. Interpreting human rights legislation primarily in terms of formal equality undermines its promise of substantive equality and prevents consideration of the effects of systemic discrimination, as this Court acknowledged in Action Travail, supra.

British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 at paras. 40 to 41 [CCD's Book of Authorities, Tab 1]

79. The Ontario Human Rights Commission aptly describes the principle in its Policy and Guidelines on Disability and the Duty to Accommodate:

    3.1.3 (a) Design by Inclusion

    Integration requires up front barrier-free design and inclusion- by-design in order to fully integrate persons with disabilities into all aspects of society as much as possible.
    This approach combats "social handicapping" and recognizes that social attitudes and actions often contribute to "handicaps": a person may have few or even no limitations other than those created by non-inclusive thinking. The Supreme Court has noted the need to "fine-tune" society so that structures and assumptions do not exclude persons with disabilities from participation in society24 and it has more recently affirmed that standards should be designed to reflect all members of society, insofar as this is reasonably possible.25
    When constructing new buildings, undertaking renovations, purchasing new computer systems, launching new Web sites, setting up new policies and procedures, offering new services, or implementing new public transit routes, design choices should be made that do not create barriers for persons with disabilities.
    Inclusive design is the approach that is most respectful of the dignity of persons with disabilities.

Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate (Revised November 23, 2000) at 14 [CCD's Book of Authorities, Tab 42]

80. The first and primary focus must be on dismantling, where possible, the "neutral", "mainstream" norms and standards. It is in this way that the imbalances of power and the discourse of ablebodyism will be challenged. It is only when true inclusiveness is not possible that accommodation may be based on an "as-demanded" individual exception to the norm, and even then, due regard should be made to being as inclusive as possible.

British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 at para. 19 [CCD's Book of Authorities, Tab 2]
British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 at paras. 25, 40 to 41, 68 [CCD's Book of Authorities, Tab 1]

81. This approach of aspiring to inclusiveness applies regardless of whether the claimant is a member of a majority or minority group. Even if the numbers affected may be small the first approach to ending discrimination is inclusion rather than supplementary accommodation on an ad hoc basis.

British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 at paras. 33 to 34 [CCD's Book of Authorities, Tab 1]

82. The wording of sections 170(1)(a) and 172 of the CTA confirms that it is the specific obstacle that must be eliminated, rather than seeking ad hoc solutions through the entire network. Pursuant to those subsections, the Agency may hear applications or make regulations for the purpose of eliminating undue obstacles in the transportation network (not created by the network) by looking at the design, construction or modification of means of transportation, premises and equipment (i.e. trains). Whether by regulation or by application, it is clear that the words "undue obstacle" contemplated requiring that accommodation be required to the design of trains.
83. The FCA's approach was not consistent with the substantive equality analysis articulated by this Court. The FCA held that in determining whether an undue obstacle exists for the purpose of Part V of the CTA, one must look at the entire network of trains available, versus the specific train said to pose a problem. The same "network" approach is taken with respect to remedy. The "norm" is not analyzed, but rather, persons with disabilities are told to look for other ad hoc individualized accommodations on a case-by-case basis.
84. A substantive equality analysis would require an examination of the specific obstacle, on the premise that the system itself must be said to accommodate persons with disabilities. The network analysis requires that discriminatory barriers only be modified as a last resort, and after all other possible accommodations have been rejected, contrary to fundamental human rights values.
85. Under the Meiron unified approach, Part V of the CTA requires the following analytical process: 1. the claimant establishes a prima facie case of facing an obstacle (barrier to accessing a service); 2. the respondent may justify the impugned feature by establishing on the balance of probabilities that (a) the respondent adopted the feature for a purpose rationally connected to the respondent's objectives; (b) that the respondent adopted the feature in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose/objective and (c) that the feature is reasonably necessary to the accomplishment of that legitimate purpose/objective. The respondent must demonstrate that it is impossible to accommodate individuals sharing the characteristics of the claimants (e.g. individuals with disabilities, particularly those requiring a personal wheelchair) without imposing undue hardship upon the respondent.

British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 at para. 54 [CCD's Book of Authorities, Tab 1]

86. Significantly, the network approach put forward by VIA and adopted by the FCA does not meet the "impossible to otherwise accommodate short of undue hardship" criterion laid down by this Court. In the within case, the appellants maintain that VIA would not even meet the "rational connection" and "good faith" criteria.

(b) Consequences of not advancing substantive equality - access to justice

(i) Burden on applicants

87. The court below's avoidance of inclusive norms places a particular hardship on persons with disabilities, who "live in a world relentlessly oriented to the able-bodied".

Most of our mainstream institutions, laws, organizations, buildings, telecommunication systems, schools and universities, public policy initiatives, job descriptions, transit services and other facilities are designed and operated on the unarticulated, erroneous and unfair premise that only persons without disabilities could, would or should participate in or use them.