VIA Rail succeeded in appealing a finding of the Canadian Transport Agency (the “Agency”) that the VIA Rail meal distribution policy constituted an undue obstacle to the mobility of a passenger who used an electric wheelchair (“Sikand”)

Administrative law – Human rights complaints – Discrimination – Disability – Decisions of administrative tribunals – Canadian Transportation Agency – Obstacle to the mobility of a passenger – Discrimination – Judicial review – Jurisdiction of tribunal – Statutory interpretation – Compliance with legislation – Standard of review – Correctness

Via Rail Canada Inc. v. Canada (Canadian Transportation Agency), [2006] F.C.J. No 159, Federal Court of Appeal, February 6, 2006, Decary, Sexton and Evans, JJ.A.

Sikand was travelling on VIA Rail between Toronto and Ottawa. She filed a complaint under s. 172 of the Canada Transportation Act, S.C. 1996, c.10 (the “Act”). The Agency held that Sikand established undue obstacles to her mobility created by VIA Rail’s service, itemized as:

1. the unavailability of a wheelchair tie-down, during one segment of the trip, that had been reserved for her at the time of booking;
2. lack of access to a washroom during one portion of the trip; and
3. VIA Rail’s meal distribution policy on the return trip.

VIA Rail appealed from the finding on the meal distribution policy only.

VIA Rail offers meal service in first class cars only. Three meal options are available to begin with, but there is only one meal carried per passenger, and so once one selection is used up, fewer options are available for remaining passengers. Wheelchair tie-downs are only available in first class cars, at the end of the car where beverage service begins, and at the opposite end where meal service begins. Most passengers travelling in wheelchairs pay coach fare, and VIA policy is that when a wheelchair passenger travels, his or her attendant travels free of charge and both receive a complimentary meal.

On the return portion of Sikand’s trip, she was offered a meal but only had one option for that meal because meal distribution started at the opposite end of the car.

Sikand did not participate in the Federal Court appeal and recognised in her evidence that if VIA Rail had informed her travel agent that meals provided in first class to passengers paying coach fare were an additional benefit provided as a courtesy, and only after other passengers had made their selection, she would not have raised the meal policy issue with the Agency.

VIA Rail changed its policy after the Sikand complaint so that all persons with disabilities would be able to select their choice of meal at the reservation stage, and that specific meal would be made available to them on the date of travel. The issue remained alive for appeal purposes because VIA Rail submitted that the meal distribution policy was a service issue and therefore beyond the reach of the Agency to consider.

The Agency held that the meal distribution policy was an obstacle to the mobility of persons with disabilities within the meaning of subsection 172(1) of the Act. The Agency noted that because of the position of the tie-downs, people using wheelchairs would not have access to multiple seating choices, and so would always be the last in the first class car to be offered meal options.

Applying the pragmatic and functional approach, the Court determined that a correctness standard should be applied to interpreting the statutory meaning of the word “obstacle”, because the statute contained a right of appeal, the Agency did not have greater relative expertise on this issue, the provisions at issue dealt with a discrete part of the Act, and the question was one of statutory interpretation and comparison of the respective jurisdiction of the Agency and the Canadian Human Rights Commission.

The appellate court held that the meal distribution policy did not constitute an obstacle. The term “obstacle” was to be interpreted in its immediate legislative context, as associated with mobility, and therefore referring to obstacles of a physical nature. The institutional context of “obstacle to mobility” was to be understood in light of the respective jurisdiction of the Agency and the Canadian Human Rights Commission (the “Commission”). The Commission is the primary institution for human rights issues, while the Agency is specialized in transportation matters. Therefore, the Agency’s mandate is to ensure that persons with disabilities have proper access to effective transportation services and that there are no structural or physical impediments to their ability to use these services.

The Court held that the meal distribution policy was a question of customer service rather than mobility and access. The appeal was allowed and the decision of the Agency set aside on the meal distribution policy issue.

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