Administrative law – Decisions of administrative tribunals – Canadian Transportation Agency – Accessibility standards – Human rights complaints – Disability – Judicial review – Compliance with legislation – Jurisdiction – Procedural requirements and fairness – Standard of review – Patent unreasonableness
Council of Canadians with Disabilities v. Via Rail Canada Inc.,  S.C.J. No. 15, Supreme Court of Canada, March 23, 2007, McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
The Respondent, Via Rail, had paid $29.8 million dollars to purchase 139 used railcars in late 2000. The cars were inaccessible to persons with disabilities using personal wheelchairs. Via claimed that the cars were sufficiently accessible. The Appellant, the Council of Canadians with Disabilities, applied to the Canadian Transportation Agency under s. 172 of the Canada Transport Act, complaining that many features of the cars constituted undue obstacles to the mobility of persons with disabilities. The Council relied, in part, on Via’s alleged non-compliance with the “1998 Rail Code”, a voluntary code negotiated with and agreed to by Via that set minimum standards applicable to its transportation network. The Code established accessibility standards that were to apply to new railcars or cars undergoing a major refurbishment.
The Agency issued a preliminary decision in March 2003 in which it gave Via a final opportunity to provide specific evidence to show cause to the Agency why the obstacles it had identified were not undue and to provide feasibility and costing information relating to the remedial options under consideration by the Agency. Two months later, Via replied that it was not reasonable to require it to modify the cars; it gave the Agency a brief estimate in a three-page letter without any supporting evidence. In June 2003, the Agency advised Via that its response lacked detail and feasibility information and was therefore unverifiable. The Agency reissued its original show-cause order, giving Via additional time to prepare a response. Via submitted some cost estimates, but indicated that it was unable to comply with the show-cause order any further. Via did not request more time, instead repeatedly asked the Agency to render its final decision. On the basis of the record before it, the Agency issued its final decision and ordered Via to implement remedial measures, all of which had been identified by the Agency by the time it had reissued its preliminary decision in June 2003. The main changes required Via to modify 13 economy coach cars and 17 service cars out of the 139 cars, so that there would be one personal wheelchair accessible car on each daytime train and one car with personal wheelchair accessible sleeper facilities on each overnight train.
Via obtained leave to appeal of the Agency’s preliminary and final decisions to the Federal Court of Appeal. In support of its application for leave, Via had filed a report that it had commissioned to review the Agency’s final decision. The report was prepared in less than 40 days after the Agency’s final decision and estimated that the cost of implementing that decision would be at least $48 million.
On appeal, the Federal Court of Appeal found that while the Agency was correct to conclude that it had jurisdiction under s. 172 of the Act to proceed with the Council’s complaint, the Agency’s decision was patently unreasonable. The Court also found that, having identified the modifications thought necessary, the Agency had violated Via’s procedural fairness rights by failing to give Via adequate opportunity to respond to its requests for costs and feasibility information.
The Council appealed that decision to the Supreme Court of Canada. A majority of the Court allowed the appeal and restored the Agency’s decision. The majority held that the standard of review applicable to the Agency’s decision as a whole was patent unreasonableness. While the Agency’s mandate has a human rights aspect, this does not take the questions of how and when the Agency exercises its human rights expertise outside the mandate conferred on it by Parliament. The Agency made a decision with many component parts, each of which fell squarely and inextricably within its expertise and mandate. The decision was therefore entitled to a single, deferential standard of review. The Agency had interpreted its authority to proceed with the Council’s complaint under s. 172(1) in a manner that was rationally supported by the relevant legislation. It also defined the analytical process to be followed in identifying undue obstacles in the federal transportation network in a way that was supported by the Act and human rights jurisprudence. Viewed as a whole, the Agency’s reasons showed that it approached and applied its mandate reasonably.
The design of the railcars in question was said to represent an undue obstacle. Under the concept of reasonable accommodation, service providers have a duty to do whatever is reasonably possible to accommodate persons with disabilities. The discriminatory barrier must be removed unless there is a bona fide justification for its retention, which is proven by establishing that accommodation imposes undue hardship on the service provider. Here, Via did not meet its onus of establishing that the obstacles created by its purchase of the railcars were not “undue”. The Agency’s analysis or decision in this regard was not unreasonable.
The Agency also considered Via’s network and found that none of the evidence on the record supported Via’s position that its existing fleet, or its network generally, would address obstacles found to exist in the new railcars. The fact that there are accessible trains travelling along only some routes, does not justify inaccessible trains on others. It is the global network of rail services that should be accessible. Via did not appear, from the evidence, to have seriously investigated the possibility of reasonably accommodating the use of personal wheelchairs or, for that matter, to have given serious consideration to any other issue related to providing access for persons with disabilities.
The Agency had also appropriately considered the cost of remedying an obstacle when determining whether it was “undue”. The issue is not just cost; it is whether the cost constitutes undue hardship. In light of Via’s refusal to provide concrete evidence in support of its undue hardship argument, no reasonable basis existed for refusing to eliminate the undue obstacles created by the design of the cars. The Agency reasonably determined that the cost of the remedial measures it ordered would not be prohibited and did not justify a finding of undue hardship based on financial cost.
Finally, Via’s right to procedural fairness was not breached by the Agency. There were no grounds for a reviewing court to interfere with the Agency’s decision not to wait for Via to produce the cost estimates that Via had repeatedly and explicitly refused to provide. In releasing its final decision, the Agency had acceded to Via’s persistent requests.
The dissenting minority of the Court held that the standard of review applicable to the issues of the Agency’s jurisdiction, and its determination of the applicable human rights law principles in the Federal Transportation context, was correctness. On the issue of jurisdiction, the dissenting judges held that the Agency had not exceeded its jurisdiction and had properly proceeded under s. 172 of the Act. However, the Agency had erred in law with respect to the test for determining the undueness of an obstacle. Part V of the Act, which grants the Agency jurisdiction to deal with undue obstacles to the mobility of persons with disabilities, must be reconciled with prevailing human rights principles. Although the Agency did discuss some of the principles in its reasons, its analysis revealed that most of the applicable principles were excluded from its reasoning.
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