Brown v. National Capital Commission and Public Works and Government Services Canada

Brown v. National Capital Commission and Public Works and Government Services Canada
Collection
Canadian Human Rights Tribunal
Date
2006-06-06
Neutral citation
2006 CHRT 26
File number(s)
T760/1003
Decision-maker(s)
Groake, Paul Dr.
Decision type
Decision
Decision status
Final
Grounds
Disability
Decision Content
Between:
Bob Brown
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
National Capital Commission
- and –
Public Works and Government Services Canada
Respondents
Decision
Member: Dr. Paul Groarke Date: June 6, 2006 Citation: 2006 CHRT 26
Table of Contents
I. Introduction
II. Facts
A. Evidence For The Complainant and CHRC
(i) Bob Brown
(ii) David Lloyd Rapson
(a) Mr. Rapson’s reports
(b) Mr. Rapson’s conclusions
(iii) Barry McMahon
(iv) Giles Warren
B. Evidence For The NCC
(i) Gérald Lajeunesse
(ii) Jerrold Corush
(iii) Robert Martin
(iv) Éric Hébert
(v) Katie Paialunga
C. Evidence For Public Works
(i) Idelle Matte
III. Law
A. Are the York Street Steps a facility or service?
B. Section 15
(i) Are the factors in s. 15(2) exhaustive?
(ii) The mandate of the NCC must be respected
C. The prima facie test
D. Meiorin: the principles of universal design
E. The duty to accommodate: reasonableness
F. The duty to consult
IV. Liability: The Case Against The NCC
A. The York Street Steps are not accessible
B. The process of consultation was deficient
C. The real problem lies in the design of the York Street Steps
D. Conclusions
V. Liability: The Case Against Public Works And Government Services
A. Public Works is not immune from a finding of liability
B. It is too late to complain of a defect in the process
C. The merits of the case against Public Works
VI. Issues On Remedy
VII. Summary Of Major Findings
Appendix A (Map and photos of the area)
Appendix B (Principle of Universal Design)
The Appendices Are Only Available In PDF Format
I. Introduction [1] The complaint before me alleges that the National Capital Commission (NCC) has discriminated against Bob Brown by denying him access to services by failing to accommodate [his] disability (wheelchair user), contrary to section 5 of the Canadian Human Rights Act. The alleged discrimination is ongoing.
[2] The service referred to in the complaint is the York Street Steps, which are located at the intersection of York Street and Sussex Drive, in Ottawa. The steps were completed in 1999. Mr. Brown alleges that they are not accessible. Mr. Brown and the Canadian Human Rights Commission (CHRC) submit that persons who cannot climb the steps have no way of going from Sussex Drive at the bottom of the stairs to Mackenzie Avenue at the top.
[3] There was a viewing of the site at the outset of the hearing. I have attached a street map and a few pictures, to give readers a better understanding of the geographical location and appearance of the steps. There is a T-intersection at Sussex: York Street ends in a steep set of stairs, which takes those people who can climb the steps to Mackenzie Avenue and Major’s Hill Park. The Peace Tower and the spire of the library of Parliament are visible from York Street. A bystander can see the Rideau locks descending to the Ottawa River and look across a chasm to Parliament Hill. The heights on either side are impressive.
[4] One of the reasons why people might want to use the steps is that there is a vista from Major’s Hill Park. I say this because the situation has evolved since the date of the complaint, and the case for the Complainant and the Commission now rests primarily on the use of the Park. The original particulars state that the steps provide a main thoroughfare between the Parliament Buildings and the Byward Market. This may have changed since another set of stairs and an elevator has now been built down the street from the York Street Steps, at the Daly site. There was evidence that this provides a more convenient route between Parliament Hill and the Byward Market.
[5] I should also say something about the National Capital Commission. The NCC is a Crown Corporation, which takes its mandate from the National Capital Act. The Act gives the NCC responsibility for the development, conservation and improvement of the National Capital Region. The evidence is that the York Street Steps are on land owned by the Crown, but administered by the NCC. The NCC is responsible for their construction and maintenance.
[6] The NCC is responsible for the general area and insisted that an elevator be provided at the Daly site, some distance down Sussex. The real dispute between the parties is whether this kind of accommodation is sufficient. Mr. Brown and the CHRC say no. They are willing to accept an elevator immediately adjacent to the site; but argue that the Daly elevator is too far away. They also argue that failure to provide access at the site of the steps discriminates against Mr. Brown and persons with disabilities.
[7] The hearing in the case was delayed by an application from the CHRC to add Public Works Government Services Canada (Public Works) as a party. This arose out of the fact that Mr. Rapson, the expert called by the CHRC, testified that an elevator shaft in an office block immediately adjacent to the steps might be used to provide access. This office block is known as the Connaught Building. It is currently occupied by the Canadian Customs and Revenue Agency under a licence to occupy granted by Public Works, which has the care, management and control of the building on behalf of the Crown. The application was allowed.
[8] The case raises many legal issues pertaining to the responsibilities of the NCC and other public actors in the area of accommodation. There must be many sites where similar issues might arise. The case also raises a narrower question with respect to the duty of the Respondents like the NCC to consult with those who require accommodation. Although this leads into a discussion of some larger issues, each case must be decided on its own merits. I have accordingly restricted myself to the facts of this case.
[9] The following decision essentially deals with liability. I agreed that I would only deal with the different proposals to provide accommodation at the York Street Steps, if that became necessary.
II. Facts A. Evidence For The Complainant and CHRC (i) Bob Brown [10] Mr. Brown has been a quadriplegic since 1972 who nevertheless likes to do things on his own and takes pride in his independence. Mr. Brown currently lives on Murray Street, three blocks from the York Street Steps. He testified that he likes to visit Major’s Hill Park,
[11] At the outset of the hearing, Mr. Brown testified that there are many festivals in Major’s Hill Park. He changed his tack, however, when the Respondent corrected this assertion.
Mr. Harnden: As I recall, you emphasized the importance of accessing the park for the purpose of festivals. Are you withdrawing from that as being a priority usage?
A. No, I am suggesting that it is not only for festivals. People do go there for festivals, but at other times, as well, from the market. It is just a nice park to go to. You go up and it overlooks the Ottawa River. It's an historic site. There are benches. People go in the evenings, and things like that, just to be in a green space.
He later testified that it is a good place to watch the sunset.
[12] The antecedents to the complaint are more political, however. Mr. Brown was the Chairperson of the City of Ottawa Disability Issues Advisory Committee in 1998, when the steps were being built. Although the NCC did not go through the municipal planning process, since it comes under federal jurisdiction, the proposal to build the steps came to the attention of the Advisory Committee. The Committee discussed the proposal and felt that there were reasons for concern.
[13] As Chairman of the Committee, Mr. Brown wrote a letter to Mr. Jim Watson, the Mayor of the City of Ottawa at the time. The second paragraph of the letter begins: We, on the Committee, unanimously submit that the design of the new steps is totally unacceptable since it repeats the same architectural barriers which we have been trying for decades to eliminate. The Committee asked the Mayor to arrange a meeting with Mr. Beaudry, the Chairperson of the NCC, to deal with the lack of access at the site.
[14] Mr. Brown thought that the Mayor wrote to the NCC, as suggested, and requested a meeting. It appears that the NCC did not receive this letter, however, and the evidence before me suggests that the letter was never sent. The question of the steps nevertheless became a public controversy, in part because of a letter that Mr. Brown sent to the editor of Ottawa Citizen.
[15] The American Embassy is immediately adjacent to the steps, on the north side of the block. The Committee also wrote a letter to someone at the American Embassy, suggesting that the proposed stairs would not be in compliance with the Americans with Disabilities Act. The Embassy was apparently paying for their design. The administrative officer for the American Embassy replied that the NCC had the final authority to determine what would be built at the site. Their concerns were limited to a desire for continuity in the style of the steps and the Embassy.
[16] The NCC responded to the controversy by arranging a meeting with the Access Committee of the Disabled Persons Community Resources Centre on March 17, 1999, to discuss the situation. The meeting was closed. There was a disagreement between the parties as to whether the Access Committee was the appropriate organization to consult. Mr. Brown was allowed to attend the meeting, but on the basis that he would not discuss it with the Municipal Advisory Committee. He testified that he felt gagged.
[17] Mr. Brown said that the NCC used the meeting to explain their plans for the Daly site, which would provide access between Sussex and MacKenzie. This did not address his concerns. He felt that he was getting nowhere and filed the present complaint on August 31, 1999. This was after the steps had been constructed. There was an investigation by the CHRC, which took a considerable period of time.
[18] There were protracted discussions between the parties and the NCC eventually held another meeting, on July 23, 2002, to discuss the options. The participants included representatives from the City of Ottawa Advisory Committee. Mr. Brown was not invited. He felt that the NCC had its mind made up from the beginning and was not willing to consider anything, other than the Daly site. He described the meeting as a sham.
[19] Despite its efforts, the CHRC was unable to resolve the matter and the complaint was referred to the Canadian Human Rights Tribunal. The position of Mr. Brown and the CHRC at the hearing was relatively simple. The York Street Steps are not accessible. There is no accommodation. A person in a wheelchair at the bottom of the steps has no way of going to the top. This is discriminatory. The Daly site provides another route through the area, but does not provide access at the steps.
[20] Mr. Brown has two basic options at the bottom of the steps. He can turn right, and take the long way around the American Embassy, which would take him to the northeast corner of the Park. Or he can turn left and go through the Daly site. The distance in both directions is a problem. The incline is particularly difficult for a person using a manually operated wheelchair.
[21] Mr. Brown’s fundamental complaint is simpler, however. He objects to the use of the Daly site because it requires those people who cannot climb the steps to go elsewhere. This separates people.
Mr. Brown: My primary concern is, because of the segregation, it is an unequal level of access. I have to be split up from the people I am travelling with to get to the level change at the top …
My biggest concern is the segregation.
Mr. Brown says that he should be able to access the top of the steps from the base of the steps. There should be accommodation at the site.
[22] Mr. Brown testified that the delay in using the alternative routes was enough to lose any party that might be waiting for him at the top of the steps.
If I am travelling, for example, with people, human nature being what it is -- travelling up, for example, York Street -- human nature being what it is, usually the other parties take the path of least resistance, or the shortest route. Their preference most times is to walk up the steps, and I have to go to another site and meet them at the top of the steps.
So I am excluded from being part of my party. I am made to feel different, and I do feel different having to do that.
Anyone who accompanies Mr. Brown will be stigmatized in the same way.
[23] This raises a question of dignity.
Mr. Brown: I feel that I should be afforded the same, equal opportunity to have access as other citizens at the same location -- at the same site, or something very close -- adjacent -- as a reasonable accommodation. Having to travel to a separate site is not a reasonable accommodation, in my opinion.
If I am with other people, it is undignified. I am made to feel like a second-class citizen because I am not permitted to use the same facility as other citizens of Canada.
This is the national capital of Canada. It is a symbolic area, as well.
Mr. Brown feels that the current situation is discriminatory. His concerns extend to elderly people, people with children in strollers, and anyone who has difficulty climbing the steps.
[24] Mr. Brown’s solution is simple. He feels that there should be an elevator at the base of the steps. If that is not possible, he thinks that an elevator immediately adjacent to the site would be acceptable, as long as you can see it from the base of the steps. He was accordingly willing to consider the use of the elevator at the north end of the Connaught Building.
(ii) David Lloyd Rapson [25] David Lloyd Rapson was called by the Commission as an expert witness in accessibility and universal design. He was originally retained in October, 2000 and asked to look at a number of options. One was the possibility of using other locations.
[26] Mr. Rapson’s background is in community planning. He also studied architectural technology and was trained in accessibility assessment. He has a breadth of experience in accommodation. He has done committee work for the Canadian Standards Association and contributed to a manual on the best practices in universal design.
[27] Mr. Rapson served as the assistant director of the Universal Design Institute at the University of Manitoba. He chaired an access advisory committee for the City of Winnipeg and led a team of fifteen people in preparing an accessibility audit of downtown Winnipeg. I should also mention that Mr. Rapson broke his back in 1993, and has some problems with his legs. He uses a cane, so his consulting is informed by some of his own experiences.
[28] Mr. Rapson testified that there has already been considerable work in developing a set of criteria that can be used to conduct accessibility assessments. There is an emerging discipline in the field of accessibility assessment. The discipline takes in a myriad of physical, psychological, sociological and public policy considerations. Some of these factors concern the process that is employed in planning, designing and constructing accessible sites.
[29] The basic criteria employed in these assessments are found in the principles of universal design. Mr. Rapson referred to these principles as guidelines, though even that word seems too strict. They are more like a statement of aspirations, which is commonly relied upon, in planning, designing and developing physical environments that are free of barriers. The word barrier refers to anything that may impede people who want to make use of them. I have attached Mr. Rapson’s formulation of the principles of universal design in Appendix B.
[30] In his testimony, Mr. Rapson made a distinction between accessibility and universal design.
A. Accessibility is a function of compliance with regulations or criteria that establish a minimum level of design necessary to accommodate people with disabilities.
For example, most building codes -- the national building code, the Ontario building code, the Manitoba building code -- usually have the minimums, This is the minimum that you can design for it. Universal design is more of an art and a practice of design to accommodate the widest variety and the number of people through their lifespans.
The principles of universal design provide the more general framework in which specific issues of accessibility can be considered.
[31] The accessibility issue has a legal and a technical side. Mr. Rapson described his task in the immediate case as follows:
A. There were two basic questions: an expert opinion on how the location could be made accessible to wheelchair users; and to have sufficient information to enable the CHRC to determine whether the respondent had met its legal responsibility to accommodate wheelchair users to the point of undue hardship.
The second question is problematic. The issue behind it, at least, is whether the Respondent has met its obligation to accommodate persons with disabilities under the Canadian Human Rights Act. This is a question that is reserved for the Tribunal. It would be an error to accept Mr. Rapson’s views as a legal opinion.
[32] Mr. Rapson was entitled, as an expert in accessibility and universal design, to speak to the technical side of the question. There is not that much that anyone can say, in this context. The Respondent did not dispute the fact that the steps, as originally constructed, are not accessible. They were not designed in accordance with the principles of universal design and do not meet current standards. The contentious question is whether the NCC has rectified the situation.
[33] Mr. Rapson is of the view that the York Street Steps do not meet the principles of universal design. They are not, in his view, accessible. The elevator at the Daly site does not rectify the situation. I have generally accepted Mr. Rapson’s opinion on these issues. I found his evidence thoughtful and measured. He understood the need to make reasonable compromises.
(a) Mr. Rapson’s reports [34] Mr. Rapson made two reports. The first report was dated June 14, 2001, and was limited by the fact that he was not given any funding to visit the site. I think this was an error in judgement on the part of the CHRC, which was taking a real risk, in asking him to write a report without a physical examination of the site. I nevertheless accept that any deficiencies in the initial report had been made up by the time of the hearing.
[35] Mr. Rapson had a series of photographs taken of the site. He also asked colleagues to inspect it for him. He spoke to a variety of people and tried to pull in as much information as he could. This included correspondence, site plans, and other documentary material.
[36] The first report concludes that the steps contravene three of the guiding principles of universal design: equitable use; flexibility in use, and low physical effort. They did not meet the principles of universal design. The alternative routes were excessively long. There were also problems with the consultation process adopted in 1994.
[37] Mr. Rapson nevertheless acknowledged that the site was challenging. The hill was too steep to permit the construction of a viable ramp, and an exterior elevating system was not appropriate. He accordingly proposed his own alternative.Mr. Rapson thought that the obvious solution was to make use of an elevator in the Connaught Building, immediately beside the steps. He felt that the NCC did not have a sufficiently encompassing consultation process with the adjacent building occupants in the Connaught Building. I agree with this conclusion.
[38] The second report from Mr. Rapson is essentially a response to the Universal Accessibility Assessment Study prepared for the Respondent by Robertson Martin in July 2002. It contains his final conclusions. There are some differences in the two reports, but I think it is more important to focus on his testimony, which followed the outline of the second report.
[39] Mr. Rapson made additional investigations after issuing the second report and made three or four visits to the steps. He measured the time it took to complete the various routes around the steps. He estimated that the trip to the top of the steps, via the Daly site, or around the U.S. embassy, was six to eight minutes.
[40] Mr. Rapson also observed the pedestrian traffic.
Mr. Rapson: There was a steady flow of people going up and down.
I did one count for the eight minutes and it worked out to somewhere around 85 people, somewhere in that range, varying in age, varying in size -- families, single people.
There was one family with a carriage with a young one in it, and they were bouncing their way down.
There were a number of scooters that I saw traveling at the bottom.
There was a young family, as I mentioned earlier, with a baby carriage that couldn't make it up the stairs, so they had to go around. It was the same for an elderly person in a manual chair with somebody pushing them.
Q. You mentioned that someone couldn't make it up the stairs. Had they attempted to --
A. They were looking for a way to get up to the park. They were down by the Byward Market.
The point is simply that the steps present a barrier to a wide range of people.
[41] Mr. Rapson testified that it would be wrong to look at the site solely from the perspective of a person in a wheelchair. His concern was with anyone who was unable to climb the stairs. He also testified that there is no perfect solution. The best solution for one user might not meet the needs of other users.
(b) Mr. Rapson’s conclusions [42] Mr. Rapson’s central conclusion was that the original design of the York Street Steps does not meet the principles of universal design. The steps are not accessible. The alternative routes were excessively long. It was therefore a matter of retro-fitting an inadequate design. This is always problematic.
[43] Some of Mr. Rapson’s criticism concerned the lack of consultation. He suggested that there should have been a proper process of consultation in 1994, when the steps were designed. He agreed with a statement attributed to the architect for the American Embassy, who allegedly commented that this was a missed opportunity. I only repeat this comment because it captures Mr. Rapson’s view.
[44] Mr. Rapson was firmly of the view that the disabled community, the public and any interested parties should all have had a say in what was to be done with the site. This is a fundamental aspect of universal design and the NCC had not done enough in this regard. The participants at the meetings that ultimately took place were not given a full range of options. They were essentially forced to make a choice between the options presented by the architects.
[45] Nor was it a matter of dealing solely with persons who have mobility problems. The final design should accommodate persons with visual, hearing, and cognitive problems; it should accommodate persons of various heights, widths and ages. It should accommodate parents with children in strollers. Mr. Rapson recommended a signage strategy. There should be benches and rest stops placed in the area.
[46] The NCC bridled at the suggestion that it was not committed to the principles of universal design. Mr. Rapson relented somewhat on cross-examination, and stated that he consulted the NCC’s Barrier Free Site Design Manual in preparing his reports. He agreed that it provided evidence of good intentions. His position nevertheless remained the same. The design of the steps did not meet the principles of universal design.
[47] Mr. Rapson acknowledged the challenges presented by the site. The hill was high and steep. The site was tight: it was too narrow to allow for stairs and a proper ramping system. A stair platform lift would not be appropriate. Weather was a serious concern. The sociology of the area must also be taken into account. There are rough elements in the neighbourhood. Those who made use of an elevator might have legitimate fears about walking down a corridor, out of public view.
[48] There were historical and cultural factors. Mr. Rapson described Ottawa as a showpiece of Canada. This must be taken into account. There is also the fact that the American Embassy is next door. The cost of any adjustments would have to be considered, as would engineering and security issues. The competing interests must be balanced.
[49] The second report goes through the options in the Robertson Report. Mr. Rapson added the Connaught Building as an option. The first option in the Robertson Report was the status quo. This was unacceptable. Option 2, a stair platform lift, was unworkable. It would be open to the air and inclement weather. It would be cumbersome, since two lifts would be necessary. The manual operation of the lift would present a problem for people with disabilities.
[50] Option 3 was the Connaught Building. The Connaught Building had level access at ground level and above, on MacKenzie Avenue. There was a ramp adjacent to the York Street Steps. The first report from Mr. Rapson suggests that the existing entrances, exits and elevator could be used. The second report suggests a new elevator. There was an elevator shaft at the ramp. This was the best option. There would have to be push button access and upgrades in the building to meet current accessibility standards.
[51] I think the Respondents have overstated the fact that Mr. Rapson has never been in the Connaught Building. He had the floor plans, and if the matter did not go beyond that, it was because the Respondents were not willing to pursue it. Mr. Rapson was merely recommending that the building be considered. He accepted that there may be security concerns that would prevent the building from being used, and acknowledged that his proposal was a suggestion.
[52] Option 3a was a vertical elevating device. Mr. Rapson thought that this was a feasible option but acknowledged that it would have to be located on the property of the NCC, presumably at the back of the site, beside the steps. This meant that the current retaining wall would have to be moved, an expensive and even awkward proposition. Mr. Brown asked about the possibility of constructing an elevator at another location on the site, but Mr. Rapson warned that there would be engineering problems.
[53] Mr. Rapson was generally happy with the idea of an elevator. He was nevertheless concerned about the canyon effect that would be produced by locating it at the back of the site, beside a five or six metre retaining wall. The corridor leading to the elevator would be dark and aesthetically undesirable. He had additional concerns about the size and design of any elevator. He had concerns about vandalism, and general security issues.
[54] The fourth option was to make use of the proposed elevator at the Daly site. Mr. Rapson felt that this was simply too far away. It did not meet at least two of the principles of universal design, which call for an equitable solution that requires low physical effort. He also thought that it would stigmatize those persons who had to use the alternative route.
[55] Mr. Rapson thought the elevator at the Daly site was needed. But it did not resolve the problem at the York Street Steps, which needed on-site access. The Daly site would also stigmatize people who had to use the elevator. Mr. Rapson felt that this is a common problem with access. People with disabilities are unintentionally segregated from other people.
[56] There is real symbolism here. This kind of issue goes to the heart of the legislation and the concept of equality that is enshrined in the law of the person. Compromises must be made. The practicalities of any situation must be taken into account; but so must the needs of dignity. People who cannot climb the steps should be accommodated, as much as possible, at the site.
[57] Mr. Rapson took the position that it was not his place to substitute his views for those who had an interest in accommodation at the steps. The most appropriate solution could only be determined through the process of consultation. He was nevertheless satisfied that the Daly site did not provide access close enough to the steps. That seemed to leave an elevator, either on site or in the Connaught Building. He also felt that there might be ways of dealing with the security problem in the Connaught Building that were never explored.
(iii) Barry McMahon [58] Barry McMahon has lived in Ottawa for 30 years. At one point, he had an audiovisual company at 61A York Street, in the ByWard Market. He is accordingly familiar with the York Street Steps and the surrounding area.
[59] Mr. McMahon has post-polio mylitis. This affects the neurons in the muscles, which restricts the amount of activity that he can undertake. He has been using a wheelchair and a scooter in an effort to delay the advance of his condition.
[60] Mr. McMahon has known the Complainant for 14 years. He nominated Mr. Brown to the Municipal Advisory Committee on Disability in 1996, while he was chairing the Committee. The Committee had an extremely broad mandate and dealt with any matters within the municipality that raised disability issues.It is now mandatory under provincial legislation that cities in Ontario have such a committee.
[61] The selection process for the Municipal Advisory Committee is open. Members are sought through the media, through City Council, through the members of the Committee, and the City Clerk. There is another committee that recommends candidates for membership. They are appointed by the mayor, by motion in council.
[62] The process at the Committee was relatively straightforward.The planning Committee would submit individual site plans to the Advisory Committee for recommendations.There was a formal distribution sheet in the planning department. They did not deal with the interior of the building unless it was a municipal site.
[63] Mr. McMahon resigned from the position of chair in the middle of 1998. Mr. Brown was elected as the new Chair and remained in that position until the City of Ottawa was amalgamated. Mr. McMahon resigned from the Advisory Committee in 2003. He was the interim chair of the Accessibility Advisory Committee of Ontario at the time he testified.
[64] The history of the matter really goes back to 1998, when it was brought to the attention of the Municipal Advisory Committee that the York Street Steps were being redesigned. In January 1999, the Committee formed a subcommittee to deal with the project. The Committee felt that the existing steps were a barrier and did not want to see the barrier duplicated. There was a lot of anger and frustration. The Committee felt that the original design of the steps was flawed.
[65] The Committee was apparently told that the estimates put the cost of the stairs at 38 thousand dollars per step. They felt that this should have been sufficient to deal with the access issue. There were a number of letters. Mr. McMahon thought that Jim Watson, the Mayor, wrote to the Chairman of the NCC.
[66] The minutes of the Accessibility Advisory Committee from August of 2002 refer to the meeting. Giles Warren and Danielle Vincent reported to the Committee as a whole. Mr. Warren reported to the Committee that the only solution offered by the NCC was the elevator at the Daly site. The feeling of the Committee was that the NCC had already decided that access would be provided at the Daly site. This was a fait accompli and was not open to negotiation.
[67] Mr. McMahon felt that the Daly site was not a viable solution. It was simply too far away. The Daly site doesn’t solve the problem at all, he testified. You might as well go around the block. Access should be provided immediately at the foot of the steps. The Committee felt that the Daly site was a token solution. There was a general feeling that it was futile to participate further in the process. Mr. McMahon now realizes that this may have been a mistake.
[68] Mr. McMahon testified that he sent an email to the U.S. Architects and Transportation Barriers Compliance Board in Washington D.C on March 19, 1999. He advised them of the situation, on the basis that they had provided part of the infrastructure for the American Embassy. He received a response from the Compliance Board in April, with a copy of a letter from someone in the Department of State saying that the matter was out of their jurisdiction.
[69] Mr. McMahon clearly felt that the problem lies in the design of the Steps. The elevator at the Daly building does not address this problem at all. It merely diverts the problem. The other side of the Daly site is nowhere. There is a tremendous amount of congestion in the area. There are street kids, homeless people, beggars and vagrants in the area. The corner of Sussex Drive and Rideau Street is particularly bad.
[70] Mr. McMahon feels that the existing situation is intolerable. He said it is amazing how much inconvenience the NCC is causing to people at the site. It is not simply people in wheelchairs. The same problems confront women with toddlers in strollers, elderly people, people who are overweight, people with visual disabilities. If there was an alternate way of negotiating the steps, he believes that it would be heavily used.
[71] Mr. McMahon thought that the main alternative would be an elevator. The transit way has had elevators for 10 years. There could also be a funicular. He testified that people should be offered an alternative at the bottom and the top. The most convenient location would be beside the Connaught Building, below the landing on the MacKenzie Street side. He stressed the importance of maintaining visual contact between people who are travelling together and felt that an elevator on the site would be the best solution.
[72] There is a question of inclusion here. Mr. McMahon stated that splitting up at the steps, with the intention of rejoining his party at the top of the stairs, accentuates his disability. The steps are a barrier. A person’s disability comes to the fore and becomes predominant when faced with a barrier. The goal in accessibility is to remove these barriers. The purpose of universal design is to incorporate disabled persons seamlessly into the public and society.
(iv) Giles Warren [73] Giles Warren testified from Hamilton. He has had polio since childhood and uses a wheelchair. He lived in Ottawa for forty years and was a member of the Municipal Advisory Committee on Disabilities from 2000 to 2003. He was vice chair by the time he left. Mr. Warren did not spend much time in the area of the York Street Steps. He was nevertheless aware of the issues surrounding the steps from his committee work.
[74] Mr. Warren was the Chair of the subcommittee on site approvals. He was asked to go to a meeting in July, 2002. The meeting was July 23 at the headquarters of the NCC. Mr. Warren did not know the other people at the meeting, other than Danielle Vincent. Mr. Warren says that he went to the meeting with an open mind. The Accessibility Study commissioned by the NCC--the Robertson report--was neutral.
[75] When Mr. Warren got to the meeting, however, he discovered that the Mr. Martin, the consulting architect, was already in favour of using the proposed elevator at the Daly site. Security had become a major concern. The overall message was simple: the preferred alternative was to install a public elevator at the Daly Building. Mr. Warren says that the other options were never seriously addressed. It was a window dressing exercise.
[76] The minutes of the meeting prepared by Mr. Martin demonstrate that Mr. Warren agreed that the Daly site was the best solution. Mr. Warren discounted this. He says that he only agreed because there were a limited number of options on the table. None of the options addressed the real problem, which was the original design of the steps.
[77] Mr. Warren’s report to the Municipal Advisory Committee uses the same words. The minutes of the Committee describe the meeting as window dressing to satisfy the concerns of the CHRC. There was an informal discussion of the situation at the Committee, after which the matter was left hanging. The Committee basically left it to the CHRC to deal with the matter.
[78] Danielle Vincent from Disabled Persons Community Resources was also at the meeting. Mr. Warren testified that she shared his view that the meeting was window dressing. Ms. Vincent did not testify so the statement is hearsay. I accordingly think it would be wrong to place any weight on it.
[79] Mr. Warren was accommodating on cross-examination. He was willing to accept that the NCC was within its rights to assume that the Municipal Advisory Committee supported the Daly-site option. He recognizes that the NCC may not have appreciated his objections. He realizes, in retrospect, that he should have gone back to the planners and architects and expressed his views to them.
[80] This does not change his view of the situation. Mr. Warren was not happy with any of the alternatives proposed in the Robertson Report. He thought the proposed location for an elevator at the steps was impractical. The alleyway between the Connaught Building and the steps was dangerous. He was concerned with vandalism and with the threat posed by vagrants in the area. This included the Daly site.
[81] Mr. Warren rejected the idea that the elevator at the Daly site would provide equal access. He felt that it was like asking disabled people to use the back door. He suggested that the use of an alternative route might be justified on the same separate but equal rationale that was used to justify segregation. He remembered signs directing blacks to different washrooms or rear entrances.
[82] Mr. Warren also thought the extra distance to the Daly Building was a significant obstacle. It was just as easy to walk around the block.
B. Evidence For The NCC (i) Gérald Lajeunesse [83] Gérald Lajeunesse is the Chief Landscape Architect for the NCC. He has been working for the NCC since 1977. He became the project director for Confederation Boulevard in 1988.
[84] Mr. Lajeunesse testified that the NCC is committed to universal access and published a Barrier-Free Site Design Manual in 1995. The manual provides a tool for people preparing projects under the purview of the NCC. The major part of the process however consists of consultation. The NCC introduced a Universal Access Policy in 1996, which applies to its sites, buildings and services and to those which it leases. There is an internal committee, which performs assessments for government departments and monitors developments in the area.
[85] One of the major elements in the NCC’s plans for the National Capital is Confederation Boulevard. The Boulevard runs for seven and a half kilometres and includes the ceremonial route to the Governor General’s residence. The frontage along Sussex Drive and MacKenzie Avenue, and the York Street Steps, are considered part of the Boulevard.
[86] Confederation Boulevard is designed to accommodate large gatherings of people and allows lingering. The sidewalks are generous. The idea is to give the pedestrian priority. Mr. Lajeunesse testified that Major’s Hill Park might be considered an exception to the general plan. The NCC tries to minimize activity in the area, to protect the vegetation, which is apparently on thin soil. The primary pedestrian route is from the Parliament Buildings on Wellington Street to Rideau Street, and then along Sussex Drive to York Street, and into the Byward Market area.
[87] Mr. Lajeunesse took over the York Street Steps site in 1989. Alex Kilgour, the project manager for the York Street Steps, reported to him. There was an insignif