National Capital Commission v. Brown

National Capital Commission v. Brown
Court (s) Database
Federal Court Decisions
Date
2008-06-13
Neutral citation
2008 FC 733
File numbers
T-1117-06
Decision Content
Date: 20080613
Docket: T-1117-06
Citation: 2008 FC 733
Ottawa, Ontario, June 13, 2008
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
National Capital Commission
Applicant
and
Bob Brown and the Canadian Human Rights Commission, and the Attorney General of Canada (Representing the Department of Public Works and Government Services Canada)
Respondents
and
THE COUNCIL OF CANADIANS WITH DISABILITIES
Intervener
REASONS FOR JUDGMENT AND JUDGMENT
I Introduction
[1] This is an application for judicial review of the decision of the Canadian Human Rights Tribunal (the Tribunal), dated June 6, 2006, which decided that the National Capital Commission (the applicant or the “NCC”), and Public Works and Government Services Canada (“Public Works”) discriminated against Mr. Bob Brown, (the respondent or Mr. Brown) in the provision of services, on the ground of disability, contrary to sections 5 and 15 of the Canadian Human Rights Act (the “Act”), R.S.C. 1985, c. H-6; in that the NCC failed to provide universal access at the York Street Steps (the “Steps”), between Sussex Drive and Mackenzie Avenue, in Ottawa and instead installed an elevator at the Daly Building site, located some 130 meters away from the Steps.
[2] Upon the direction of the Tribunal, Public Works was added as a third party respondent on December 9, 2003. As agent of the Crown and owner of the Connaught Building, which is located immediately to the South, between the Steps and the Daly Building elevator, the Tribunal held that there is sufficient nexus between these two Crown entities to impose on Public Works, a duty to facilitate the accommodation of Mr. Brown at or adjacent to the Steps.
[3] This finding against Public Works is the subject of a separate application for judicial review in Attorney General of Canada (representing Public Works and Government Services Canada) v. Bob Brown, the Canadian Human Rights Commission and the National Capital Commission and Council of Canadians with Disabilities, T-1132-06. Both matters were heard together over a period of three days in Ottawa. The reasons that follow pertain only to the present file. Reasons for judgment in the companion file, T-1132-06, above, are released concurrently.
[4] For ease of reference, the following table of contents sets out the topics that will be discussed:
Table of Contents
Paragraph
I Introduction 1
A. The Addition of an intervener 5
II Factual context 6
A. The General Area and the York Street Steps 6
B. NCC’s pre-construction plans to make the Steps Accessible 12
C. Alternative accommodation: The Daly site Elevator 23
D. Bob Brown lodges Human Rights Complaint 28
E. Proceedings before the Canadian Human Rights Commission
(the “Commission”) 35
i) Investigation Report 35
ii) Further investigation: The First Rapson Report June 14, 2001 41
iii) Investigator’s Report – Supplementary 47
F. NCC efforts following filing of Human Rights Complaint 48
G. The Second Rapson Report –May 15, 2003 58
III. The Impugned Decision 60
IV Issues 64
V Relevant legislation 66
VI. Standard of Review 68
A. Dunsmuir: General principles 69
B. Application of Dunsmuir to the present file 77
i) Proper standard of review on the statutory interpretation 78
of the York Street Steps as a “service” or “facility”
ii) Proper standard of review on shifting of the onus 81
iii) Proper standard of review on finding of a duty to consult 82
iv) Proper standard of review of the local versus the global 90
approach
v) Proper standard of review of rejection of the
Daly site elevator without proper balancing of factors 92
VII. Analysis 94
A. Did the Tribunal err in law in determining that the 94
York Street Steps constitute a service or a facility
within the meaning of section 5 of the Act?
B. Did the Tribunal err in law in concluding that 98
when it is established that there is a prima facie case
of discrimination, the onus does not shift to the respondent
to demonstrate that accommodation was undertaken
short of undue hardship?
C. Did the Tribunal err in fact or law in finding that the duty 105
to accommodate involves a duty to consult?
D. Did the Tribunal err in fact or law by limiting its analysis 121
to the bottom of the Steps rather than approaching its
analysis globally?
E. Did the Tribunal err in fact or law when it rejected 131
the Daly site elevator without doing the proper balancing?
VIII Costs 145
IX Conclusion 146
A. The Addition of an intervener
[5] By Order of this Court, rendered on January 17, 2007, the Council of Canadians with Disabilities (CCD) was granted intervener status with full rights of participation, in both files T-1117-06 and T-1132-06.
II Factual context
A. The General Area and the York Street Steps
[6] The NCC is a federal Crown Corporation, mandated by the National Capital Act, R.S.C. 1985, c. N-4 (the “NCA”). Its objects, purposes and powers are set out in section 10, which provides as follows at paragraph 10(1)(a):
Objects and purposes of Commission
10. (1) The objects and purposes of the Commission are to
(a) prepare plans for and assist in the development, conservation and improvement of the National Capital Region in order that the nature and character of the seat of the Government of Canada may be in accordance with its national significance; and
[. . .]
Mission de la Commission
10. (1) La Commission a pour mission :
a) d’établir des plans d’aménagement, de conservation et d’embellissement de la région de la capitale nationale et de concourir à la réalisation de ces trois buts, afin de doter le siège du gouvernement du Canada d’un cachet et d’un caractère dignes de son importance nationale;
[. . .]
[7] Under this mandate, the NCC began in the early 1990s to redevelop the general area bordered by Murray Street to the North, Wellington and Rideau Streets to the South and Mackenzie Avenue and Sussex Drive to the West and East respectively. The purpose of this long-term urban planning redevelopment was to revitalize this derelict area of the Nation’s capital and increase accessibility between upper town -leading to and from the Chateau Laurier, Parliament Hill and Major’s Hill Park- and lower town, -into the Byward Market. The Map in Appendix “1” provides an overview of the general area and highlights the four points of access between upper and lower town.
[8] As part of this global plan, going from South to North of this general area, in early 2000, the NCC leased on a long term basis, the Daly Building site at the corner of Wellington and Rideau Streets, Mackenzie Avenue and Sussex Drive, to a private developer, the Claridge Building Corporation. The Connaught Building, the adjacent property, located north of the Daly Building site is owned and operated by Public Works. The NCC has no power and control over the Connaught Building.
[9] The lands between York Street and Murray Street are owned by the U. S. A. government on which the new U.S.A. Embassy (U.S. Embassy) now stands. The land between the Connaught Building and the U.S. Embassy, located at the intersection of York Street and Sussex Drive however, is owned and operated by the NCC. It was used for the construction of the York Street Steps, to create an additional point of access between upper and lower town.
[10] Designed in 1994 by the same architects of the U.S. Embassy, the Steps were constructed between September 1998 and June 1999. They consist of 45 steps that follow the steep embankment, spanning a seven meter rise over 34 meters, between Sussex Drive and Mackenzie Avenue. They begin with 3 steps at the base on Sussex Drive, followed by a 3 to 5 feet landing, then six sets of a flight of seven stairs, each separated by 8 to 10 feet landings.
[11] Built as a complement to the new U.S. Embassy, the Steps have become a thoroughfare, particularly during the festival season of the spring and summer months; serving as a passageway, among others between the two streets in the nation’s Capital.
B. NCC’s pre-construction plans to make the Steps Accessible
[12] From the earliest design stages in 1994-1995, the NCC’s in-house and external architects considered ways to make the York Street Steps universally accessible, in keeping with the Treasury Board policy to make federal property assets accessible by 1995. In addition to the principles that would be set out in the NCC’s Universal Access Policy, September 20, 1996 version, the NCC prepared a working document in 1995, entitled Barrier Free Site Design Manual, outlining design guidelines for outdoor sites. These efforts were based on the accepted seven principles of Universal Design, a copy of which is found in Appendix “2” of these reasons.
[13] However, the site’s unique topographical features would defeat the plans of the NCC to provide universal access right at the Steps. To illustrate, on November 22, 1994, the NCC met with representatives from the Federal Interdepartmental Technical Committee on Accessibility (FITCA), created to oversee the implementation of Treasury Board policy on accessibility to federal real property. FITCA is made up of architects from Public Works and NCC among others. The participants at this meeting included three representatives of FITCA: Claude Charbonneau, Public Works; John Verity, Public Works and Eric Hébert, FITCA/NCC and four representatives from the NCC: John Abel; Richard Fujarczuk; Alex Kilgour and Daniel Miron.
[14] This meeting of November 22, 1994 canvassed several matters pertaining to universal access to the York Street Steps, including the planning context, the physical context of the site and the program for the Steps at the design stage. Among the methods considered for achieving universal access to the Steps, there was a ramp at 8%, a mechanical lift (funicular type) or an elevator.
[15] The ramp was ruled out since ramps cannot be higher than 5% and there was no opportunity given the physical constraints of the site -the width and slope of the land- to lessen the 8% slope of the ramp. The mechanical options including a funicular and an elevator were also subject of discussion at the meeting. NCC staff indicated that based on previous assessments these mechanical options had been ruled out due to higher initial construction costs and the expense of ongoing maintenance and operation, as well as the financial implications of renovation and maintenance in the long term.
[16] Participants at this meeting then explored several possible alternatives to the ramp and mechanical options. The first alternative to universal access was to collaborate with the U.S. Embassy to provide improved barrier-free access through or around their site by improving the sidewalks along Sussex Drive and Mackenzie Avenue adjacent to the U.S. Embassy, the Connaught Building and the Daly Site. Second, the NCC staff agreed to insist that barrier-free access be incorporated in the Daly site redevelopment, linking Sussex Drive to Mackenzie Avenue at George Street. Finally, the participants at the meeting were unanimous in the need for NCC to consult with advocacy groups for the disabled community to get their input on the best possible option to provide universal access in the area.
[17] That is why the NCC sought opinion from the local group, Disabled Persons’ Community Resources, and the Canadian Paraplegic Association (CPA National), in order to give the NCC a sense of the way the York Steps with or without a ramp would be received when constructed.
[. . .]
It was suggested that these advocacy groups will be able to understand and accept the fact that the construction of an elevator in this location is not feasible operationally or economically for the NCC. Indeed, the amount of traffic through this location may not warrant an elevator.
[. . .]
[18] On December 13, 1994, the NCC held a meeting with three representatives of the Disabled Persons’ Community Resources group, including, J. Black, R. Hubley and Judy Lux, Co-ordinator Barrier-Free Environment Program, Disabled Persons’ community Resources. Participants representing the NCC were as follows: J. Abel; A. Kilgour; D. Miron and E. Hébert also representing FITCA.
[19] The Minutes of this meeting reveal, among other things that the input of the disabled groups was key to the future development of the area. The meeting arrived at the following conclusion:
3. Conclusions:
The group concluded that the ramp should be eliminated from the design of the York Steps in lieu of improved alternative routes along Confederation Boulevard, including wider sidewalks, improved lighting, rest stops and drinking fountains. The collaboration of the U.S. Embassy should be sought to seek whatever improvements are possible at the Sussex-Mackenzie-Murray intersection to facilitate universal accessibility around the north end of their property. In future plans for the re-development of the Daly Site, barrier-free access should be incorporated at the north end of the site to facilitate access to and from George Street.
[20] In light of the suggestion of the disabled groups, in a letter dated December 20, 1994, Mr. John Abel, Director, Design and Land Use Division, NCC wrote to Mr. Ned Arcement, Minister – Counselor for Administrative Affairs, U.S. Embassy, in which he presented matters relating to the York Street Steps and building codes. The letter conveyed the conclusions reached at both meetings with FITCA and the disability groups. It also announced NCC’s decision to proceed with the design without the ramp or an elevator. It gave the go ahead for the construction of the Steps by the same architect who built the U.S. Embassy.
[21] In addition, to the consultation meetings and the above-noted correspondence between the NCC’s architect and the U.S. Embassy, Mr. Éric Hébert, an NCC –FITCA representative who participated in both the November 22 and December 13th 1994 consultation meetings, wrote to Mr. Alex Kilgour, NCC Architect of the project. In his letter in French, dated January 9, 1995, Mr. Hébert acknowledged that it would be difficult to incorporate measures at the site to make the Steps accessible. As a result, the NCC should consider alternative accommodation to the Steps in the general area, including widened sidewalks, and universal access at the anticipated Daly site. These alternative routes would enable all participants to take part in events held at the popular Major’s Hill Park.
[22] Based on the conclusions of the two sets of consultations, first with FITCA, then with representatives of the disabled community, and keeping in mind the concerns of Mr. Hébert, and the considerations of the U.S. Embassy and exploration of common access with the Connaught Building, the NCC proceeded with construction of the Steps without a ramp or an adjacent elevator, with the undertaking that it would implement all the recommended improvements, including proper signage, widened sidewalks, and benches for repose, as well as an elevator at the Daly site.
C. Alternative accommodation: The Daly site Elevator
[23] The NCC undertook and included in the final development agreement with the Claridge Building Corporation, the private developer of the Daly Building site, the provision for a stand alone universally accessible elevator, which would be available to the general public 24 hours a day. Article 3 of the Development Agreement – Sussex/Mackenzie dated April 2002 provides as follows:
3.1 Final Plans
5. Without limiting the generality of the foregoing, the Developer covenants and agrees that the Final Plans shall include: (a) an elevator at the north-east corner of the site to be constructed in conjunction with the George Street stairs for the purpose of providing barrier-free access from Sussex Drive to Mackenzie Avenue at the north end of the Lands; [. . .].
[24] In a letter dated May 16, 2003 to Mr. Bill Malhotra, P. Eng, President of Claridge Homes Corporation, Mr. John Abel, of the NCC, wrote to object to the proposed “LULA”, limited use/limited application type elevator for the Daly site. The LULA elevator did not meet the minimum industry standards to install an elevator with sufficient internal area and easy-to-use controls to meet the needs of physically disabled individuals. In strong language, Mr. Abel wrote:
On this basis, the proposed device is not acceptable to the NCC. An elevator is required that meets both the full dimensional and barrier free standards provided to your consultants, and it must be sufficiently robust to meet the demands of the outdoor location and the intensity of use likely during Canada Day or the many other national events in the Capital.
[25] Also, on June 9, 2003, Mr. Abel wrote to Mr. Thomas Schweitzer as a follow-up to the joint meeting of April 29, 2003 concerning the detailed plans for the Sussex/Mackenzie South development. Mr. Abel raises the concerns with respect to the LULA elevator, and states:
We have recently received confirmation from Claridge that this is being resolved in favour of an elevator that meets the minimum area of 1725 x 1370 mm. previously defined by the NCC, rather than a LULA type device.
[26] This ongoing correspondence between Mr. Abel and Mr. Schweitzer included a set of the Developed Design drawing, dated August 1, 2003 to which Mr. Abel responded with further concerns in a letter dated September 30, 2003. In particular, Mr. Abel raised the issue that clear and direct views of the elevator at the Sussex Drive level were partially obstructed from the proposed concierge desk and consequently withheld final approval of the design until that aspect was corrected.
[27] In light of the above correspondence, the defects were rectified and a secure barrier-free Daly site elevator was installed during the construction of the Daly Building and became fully operational in the Summer of 2005. However, this would be six years after the construction of the Steps and the filing of a human rights complaint by Mr. Bob Brown.
D. Bob Brown lodges Human Rights Complaint
[28] Mr. Brown is a quadriplegic since 1972 and uses a wheelchair. He is an active longtime resident of the Byward Market. Mr. Brown was the Chairperson of the City of Ottawa Disability Issues Advisory Committee (the “Committee”), in 1998 when the Steps were being built.
[29] This Committee discussed the plans for the Steps and felt that there were reasons for concern because the Steps were not accessible to people with physical limitations. Before long, a public controversy ensued with a letter from Mr. Brown to the Editor of the Ottawa Citizen, following communications between Mr. Jim Watson, at the time, Mayor of the City of Ottawa, and Mr. Marcel Beaudry, the then Chairperson of the NCC.
[30] The NCC took immediate action to respond to the controversy both in the media and with the disabled community. On March 17, 1999, the NCC held a meeting with the Access Committee of the Disabled Persons Community Resources Group (DPCR), a non-profit organization that carries out assessments of buildings in Ottawa-Carleton to improve accessibility to peoples with disabilities.
[31] After an overview of its initial designs to include a ramp or an elevating device at the Steps, and the consultation it had conducted with both in-house and external architects, as well as the disability groups, the NCC explained that the Steps were being constructed without universal access because the topographical features precluded safe and secure universal access measures at the Steps.
[32] In addition, the NCC presented its plans to provide alternate reasonable accommodation by widening the sidewalks and installing visible and improved signage. But more importantly, the NCC provided evidence of its explicit undertaking that the Daly site, which was part of the long term redevelopment of the general area, would have a stand alone universally accessible elevator.
[33] To Mr. Brown, this was simply not good enough as it did not address his concerns right at the Steps. Moreover, the Daly site elevator would not be adjacent to the Steps but some 130 meters away; thereby creating a distinction and difficulty for persons with disabilities in violation of the principles of Universal Design, including principles 1 and 6:
PRINCIPLE ONE: Equitable Use: The design is useful and marketable to people with diverse abilities.
[. . .]
PRINCIPLE SIX: Low Physical Effort: The design can be used efficiently and comfortably and with a minimum of fatigue.
[See Appendix “2” of these reasons.]
[34] As a result, on August 31, 1999, Mr. Brown filed a human rights complaint with the Canadian Human Rights Commission alleging that the NCC is discriminating against him on the ground of disability by denying him access to services and facilities right at the Steps that are customarily available to the general public. Mr. Brown’s complaint stated in part as follows:
I use a wheelchair.
The area of Sussex Drive and Mackenzie Avenue is not accessible to wheelchair users.
[…]
The specific area that I am concerned with is the York Street Steps. [. . .]
I have been advised that the Daly site development includes an elevator which is located on the north side of the property. This proposed remedy is not suitable. The accessibility would not be equal to that of able-bodied individuals. The hours of access would be limited and the distance to travel to gain access to this area is substantially farther than that of able-bodied persons.
Thus, Mr. Brown’s human rights complaint refers to the general area and then the York Street Steps.
E. Proceedings before the Canadian Human Rights Commission (the “Commission”)
i) Investigation Report
[35] The Commission investigated Mr. Brown’s human rights complaint of August 31, 1999. By letter of Defence, dated November 10, 1999, to the Commission, the Chairman of the NCC outlined the efforts undertaken to provide universal access at this topographically challenging site. Mr. Beaudry wrote that preliminary sketches were prepared for the integration of a ramp within the stairs based on established guidelines and standards. Unfortunately, following consultations with various disability groups, including FITCA and the Disabled Persons’ Community Resources Group, in 1994, the incorporation of a ramp was not feasible.
[36] Moreover, Mr. Beaudry indicated that the option of installing an elevator was reviewed and rejected when it was determined the only location to install one would force the users to come out directly onto the vehicular service ramp for the Connaught building. This option was seen as creating a dangerous conflict with wheelchairs and vehicles, especially delivery trucks. As a result, the NCC would incorporate barrier-free access within the development of the Daly Site. “Two access points –an external elevator located at the north end of the Daly site and another inside the building will ensure easy access between Mackenzie Avenue and Sussex Drive, approximately 130 meters south of the York Steps.”
[37] The investigator made several findings on the accessibility of the York Street Steps as set out in the following paragraphs of the Investigation Report:
13. [Gerald] Lajeunesse, [NCC, Chief Landscape Architect], commented that installing an elevator was not feasible as the only location to install one would force the users to come out directly onto the vehicular service ramp for the Connaught Building.
[. . .]
14. The complainant says that a ramp may not be the best access for wheelchair users, however believes that an elevator located directly at this site is more appropriate. He suggests that the proposed accessibility options at the Daly site, which he indicates is 130 meters south of the Steps, do not afford equal access. The complainant does not feel that the two organizations consulted by the respondent are authorized to represent the interests of disabled individuals such as himself.
[38] The investigator also observed that the general area can be accessed by wheelchair users via an unencumbered sidewalk and the complainant agreed that a ramp was not feasible. In addition, the implementation of the Steps was not a necessity but an enhancement to the downtown core area. Finally, other practical alternatives are being considered as the site develops.
[39] In light of these findings, the investigator recommended in a report dated June 13, 2000 that “the Commission dismiss the complaint because, on the evidence, the allegation of discrimination is unfounded.” The evidence showed that the Steps are not essential and the area is accessible through alternative routes. Moreover, the NCC did consider accessibility options through its consultation process and the parties agreed that access directly at this particular location was not recommended. Finally, the evidence showed that the site was then under development and the NCC was committed to improving accessibility in this area.
[40] By letter dated June 25, 2000, Mr. Brown wrote to the Commission requesting that it reconsider the conclusions of the investigation report. The Commission returned the matter for further investigation, with the following direction:
i. obtain an expert opinion on how the location could be made accessible to wheelchair users; and
ii. obtain sufficient information from the expert and the respondent to enable the Commission to determine whether the respondent has met its legal responsibility to accommodate wheelchair users up to the point of undue hardship.
ii) Further investigation: The First Rapson Report June 14, 2001
[41] The Commission sought expert opinion from the Progressive Accessibility Re-Form Associates (PARA) represented by Mr. David Rapson, a Project Manager at the Universal Design Institute, which is a semi-independent non-profit organization affiliated with the Faculty of Architecture, University of Manitoba. Mr. Rapson provided two reports, the second of which will be dealt with further in these reasons.
[42] The first Rapson report, dated June 14, 2001 was limited in that Mr. Rapson did not make a personal visit to the site because such a trip was not funded by the Commission. This report was based on photographs, and a detailed analysis of the plans of the general area and of the Connaught Building. Mr. Rapson also relied on second hand reports from site visits made by third parties, including an Ottawa Designer and contact person, as well as two members of Mr. Rapson’s review team.
[43] Based on these sources and documentation, Mr. Rapson made several findings, entitled Problem Summary. First, he acknowledged that a proper ramp at the stairs would be impossible because of the width and slope of the site. Second, an exterior elevating system would also not be appropriate because of pedestrian flow, weather conditions, as well as maintenance and other associated costs. Third, the alternative accessible routes around the site on the sidewalks along Sussex Drive, Wellington Street, Mackenzie Avenue, and Murray Street seemed to be excessively long for someone in a wheelchair and the potential elevator down the street was not “conveniently adjacent” to the site in order to serve persons with disabilities equitable.
[44] Fourth, the NCC did have a consultation process to consider accessibility options. However, Mr. Brown did not feel that the two organizations consulted by the NCC were authorized to represent the interests of disabled individuals such as himself. Mr. Rapson concluded that if that were the case, then it was incumbent on the NCC to expand the consultation process to encompass a wider representation of persons and organizations in order to solicit opinions and comments on the problem site. This, Mr. Rapson felt was a problem not fully addressed in the NCC’s consultation process.
[45] Fifth, Mr. Rapson concluded that NCC did not follow three of the applicable principles of universal design, including Principles One –Equitable Use; Two –Flexibility in Use and Six –Low Physical Effort. As a result of these findings, Mr. Rapson responded to the Commission’s two questions in the following manner:
[. . .] the first question asked, seems to have an obvious answer. Consult/negotiate with the owner/manager of the Connaught building to upgrade the existing entrances/exits and interior elevator (to current accessibility standards). [. . .]
It seems that the respondent, in its attempts to follow the concepts of universal design, was not clear on what universal design encompasses. Base [sic] upon the information received we feel that the respondent did not meet its legal responsibility to accommodate wheelchair users up to the point of undue hardship.
[46] The investigator also sought additional information from the NCC, and together with Mr. Rapson’s findings in his first report, the Investigator prepared a supplementary report dated June 29, 2001.
iii) Investigator’s Report - Supplementary
[47] The conclusions of the supplementary investigation report are based on the findings in the first Rapson report as summarized above. As a result of these findings the investigator’s supplementary report made the following recommendations:
11. Pertaining to the first question asked by the Commission, PARA [Progressive Accessibility Re-Form Associates] states that the respondent should consult and negotiate with the appropriate persons of the Connaught building to upgrade the existing entrances/exits and interior elevator.
12. Pertaining to the second question, it is the opinion of PARA that the respondent did not meet its legal responsibility to accommodate wheelchair users up to the point of undue hardship.
The complaint was subsequently referred to the Tribunal.
F. NCC efforts following filing of Human Rights Complaint
[48] After Mr. Brown’s human rights complaint in August 1999, the NCC undertook a complete review of the location and all possible options to make the Steps accessible right on site. To that end, on April 23, 2002, the NCC hired the Firm of Robertson Architects and Associates (the “Consultant”) to provide a fresh look at the site and to make proposals on how to best make the Steps accessible.
[49] On June 17, 2002, Ms. Danica Robertson, Robertson Architects and Associates sent an e-mail message to Ms. Sherry Berg, the NCC, along with a copy of a five-page Project Summary prepared for the NCC entitled “York Steps Universal Accessibility Assessment Study,” dated June 16, 2002. Her colleague Robert Martin sent an identical e-mail that same day to Mr. Ray Charette, Public Works. Both messages solicited feedback on the proposal in the Project Summary described as follows:
The best option to provide universal accessibility for the site would be an elevating device accessed from the delivery entrance beside the Connaught building. It could be entered and exited through, or near, existing doors at the southwest edge of the property. This elevator would connect the Sussex Street level to the stairs at the landing that is already accessible by ramp.
[50] In reply to Ms. Robertson that same day, Ms. Berg stated as follows:
Danica:
[. . .]
I think what you are proposing is a valid option worth pursuing (especially if there are no site constraints as to why we cannot install it) and we need to vet it out with them. The Daly site option should be one that can be reviewed further.
[51] By e-mail dated June 27, 2002, Mr. Charette responded as follows to Mr. Martin’s proposal to install an elevator at the southwest wall of the Steps, near the Connaught Building Ramp:
Mr. Martin,
I have met on site with representatives of the occupant facilities group, as well as the building security representative to assess this option and a number of concerns were raised.
· Increased security risks to the Connaught building due to potential unauthorized access through the garage and tunnel exits.
· The turning radius of delivery vehicles exiting the tunnel comes within 3 feet of the Southwest wall (York Stairs).
· Larger vehicles needing access to the Tunnel loading dock cannot access from the south lane way and therefore backup in the north lane way.
These large tractor-trailers would put the public at risk.
· There is a high volume of traffic from the tunnel exit that would create a substantial risk to the public.
· The slope of the ground (exit roadway) towards Sussex may not meet accessibility standards.
In short, this option would put the public at a substantially high safety risk and could potentially compromise the building security. Unfortunately, installing an elevating device at this location does not seem to be an acceptable option.
[52] As a result of this feedback to the Project Summary, the Consultants narrowed the options and released a Draft Report entitled Universal Accessibility Assessment Study York Street Steps Draft Report, dated July 19, 2002. This Draft Report was sent to the NCC and representatives of key stakeholder groups by letter dated July 18, 2002. The recipients were invited to a meeting on July 23, 2002 to discuss the contents of the report, including the following five options:
1) The continuing use of the existing alternate routes at the north end or south end of the block;
2) Building a stair platform lift at the Steps;
3) Building an elevating device accessed from the Connaught Building vehicular ramp;
3)a Relocating the south wall of the Steps and building an elevating
device directly adjacent to the Steps; and
4) Building an elevating device at the Daly building.
[53] The Consultant expressed a preference for option 3)a and provided a detailed budget outlining a preliminary estimate of $425,616.00, to remove the south wall of the Steps and install an elevator.
[54] Acting upon the advice of one of the Commission’s Conciliators, the NCC did not invite Mr. Brown to attend this meeting on July 23, 2002. However, members of disability organizations were present, including: Mr. Brown’s colleague, Mr. Giles Warren (GW), City of Ottawa Accessibility Advisory Committee; Ms. Elizabeth Norris (EN), Canadian Paraplegic Association (CPA) National; Ms. Danielle Vincent (DV), Disabled Persons Community Resources and Ms. Katie Paialunga (KP), Independent Living Centre. Other participants at this meeting included: Steve Fulcher (SF), U.S. Embassy; Robert Martin (RM), and Robertson Architects and Associates; and Danica Robertson (DR), Robertson Architects and Associates. Finally, there were five representatives of the NCC at the meeting:
§ Gerry Lajeunesse (GL);
§ Eric Hebert (EH);
§ John Abel (JA);
§ Richard Furarczuk (RF) and
§ Shauna Trudeau (ST).
[55] The Minutes of the meeting reveal that the participants were unanimous in their vote in favour of option 4, the Daly Building elevator, which was considered to be a safer location than if the elevator was installed at the Steps.
[56] Several participants provided feedback to the Consultants on the Minutes of the meeting held on July 23, 2002. These comments became part of the Consultants’ Final Report to the NCC entitled “Universal Accessibility Assessment Study York Street Steps.” Excerpts of some of these comments on the Minutes of the meeting are reproduced below:
a. Alf Gunter, M.S. Society who was invited but was unable to attend the meeting wrote as follows by e-mail dated July 25, 2002:
[. . .]
As a general comment I would like to congratulate the NCC for taking the requirements of the Human Rights Commission so seriously. If all levels of the public and private sectors would follow suit, Canada would be a mecca for persons with disabilities, rather than lagging behind most developed nations, including the USA, where the Americans With Disabilities Act has mandated national standards for more than a decade.
[. . .]
b. Stephen Fulcher, U.S. Embassy, by e-mail dated July 23, 2002, wrote as follows:
Robert and Danica: Thank you for pulling together a diverse team. As a representative of the U.S. Embassy and neighbor of the York Street Steps, I concur with the findings of the report and meeting identifying the Daly site as the best option for universal accessibility. Please keep me informed of any changes.
c. Ray Charette, Public Works, by e-mail dated July 24, 2002, wrote as follows:
Thank you for keeping me informed. Let me know if you require assistance for any future matter.
d. Elizabeth Norris, Regional Services Coordinator, CPA Ontario-Eastern Region, wrote a two-page letter dated, July 26, 2002, pertinent passages of which are as follows:
Dear Ms. Robertson and Mr. Martin:
Thank you for the opportunity to participate in the York Street Steps Accessibility Study.
[. . .]
Both the content of this study and the process by which it was communicated to CPA Ontario were indicative of a thorough analysis of the barriers in question. The inclusion of relevant background information such as the Seven Principles of Universal Design and correspondence attesting to security risks inherent in particular options laid the groundwork for a constructive and profitable exchange on July 23rd among organizations representing peoples with disabilities, the NCC and its consultants.
Clearly, there are a number of factors, some of which are unique to Ottawa, which have affected the viability of the options under consideration i.e. vertical lift platform is impracticable in this inhospitable climate. And, the intensification of security concerns within the last year have eliminated any possibility of improving access by redirecting people with mobility impairments through adjacent buildings such as the U.S. Embassy or Connaught Building.
Based upon the report and expertise of the various stakeholders present on July 23rd, the decision to install a multi-purpose stand alone elevating device serving the market-area appears to be a reasonable and equitable response to the barrier posed by the York Street Steps. In keeping with the first Principle of Universal Access Design, it appears to “avoid segregating or stigmatizing users” –the elevator is to be located in an upscale condominium unit/shopping complex whereas using the existing Connaught Building service ramp would not only place users at some physical risk but would likely be perceived as degrading by passers-by than the on-site option and therefore appears to pose fewer safety risks to persons with disabilities operating the elevator.
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[57] The NCC recognized that access to the Steps remains barred to people like Mr. Brown who are confined to wheelchairs. Notwithstanding, it maintains that while it recognized that the Daly building was an imperfect solution, it was the agreed to best option within its power and control to provide universal access between Sussex Drive and Mackenzie Avenue, its ultimate goal.
G. The Second Rapson Report –May 15, 2003
[58] At the request of the Commission, Mr. Rapson’s second report, dated May 15, 2003 provides a response to the Robertson Architects and Associates Final Report on the York Street Steps of July 2002. In addition to considering the five options proposed in the Robertson Final Report, Mr. Rapson added the Connaught Building as an option; a position acknowledged and adopted by the Tribunal at paragraphs 49-57 of its decision.
[59] On the basis of Mr. Rapson’s testimony before the Tribunal on his findings in both reports, including his suggestion that the Connaught Building is the best possible option to provide universal access near the Steps, the Tribunal interrupted the proceedings, ordered the Commission to add Public Works as a respondent in December 2003, before rendering its decision on June 6, 2006. It is this decision that forms the object of the two applications for judicial review.
III. The Impugned Decision
[60] The Tribunal found that the NCC and Public Works had discriminated against the Respondent Bob Brown by failing to provide access to persons with disabilities at the Steps. For the purposes of the present application for judicial review, the Tribunal conc