VIA Rail Canada Inc. v. Canadian Transportation Agency

VIA Rail Canada Inc. v. Canadian Transportation Agency
Court (s) Database
Federal Court of Appeal Decisions
Date
2005-03-02
Neutral citation
2005 FCA 79
File numbers
A-238-04
Notes
Reported Decision
Decision Content
Date: 20050302
Docket: A-238-04
Citation: 2005 FCA 79
CORAM: DÉCARY J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
VIA RAIL CANADA INC.
Appellant
and
CANADIAN TRANSPORTATION AGENCY
and COUNCIL OF CANADIANS WITH DISABILITIES
Respondents
Heard at Toronto, Ontario, on November 22, 2004.
Judgment delivered at Ottawa, Ontario, on March 2, 2005.
REASONS FOR JUDGMENT BY: SEXTON J.A.
CONCURRED IN BY: DÉCARY J.A.
CONCURRING REASONS BY: EVANS J.A.
Date: 20050302
Docket: A-238-04
Citation: 2005 FCA 79
CORAM: DÉCARY J.A.
SEXTON J.A.
EVANS J.A.
BETWEEN:
VIA RAIL CANADA INC.
Appellant
and
CANADIAN TRANSPORTATION AGENCY
and COUNCIL OF CANADIANS WITH DISABILITIES
Respondents
REASONS FOR JUDGMENT
SEXTON J.A.
[1] This is an appeal from two decisions of the Canadian Transportation Agency (the "Agency"), wherein it was determined that concerns raised by the Council for Canadians with Disabilities (the "CCD") in regard to VIA Rail Canada Inc.'s ("VIA") newly-purchased passenger rail cars (the "Renaissance cars") constituted undue obstacles to the mobility of persons with disabilities (specifically persons in wheelchairs) and the consequent order for VIA to take corrective measures to eliminate those obstacles.
Facts
[2] On December 1, 2000, VIA purchased 139 Renaissance cars for $139 million, which increased the size of its fleet by approximately one third. These cars had been developed in Europe in 1990 and had been designed for fast overnight service between Europe and the northern regions of the United Kingdom through the Channel Tunnel. However, the original contract was halted in 1998 and the trains were offered for sale at what VIA considered to be a bargain price. VIA purchased the Renaissance cars and at the time of purchase, the cars were fully designed and partially assembled such that they would be ready for use after final assembly.
[3] Upon learning of VIA's plans, on December 4, 2000, the CCD applied to the Agency for interim relief pursuant to sections 27 and 28 of the Canada Transportation Act S.C. 1996, c. 10 [the "CTA"] and for a final order pursuant to subsection 172(1). Specifically, the CCD, believing that the sale had not yet been completed and without having personally inspected the Renaissance cars, asked the Agency to delay or stop VIA from purchasing them because they were not accessible for persons in wheelchairs. The CCD asked the Agency to examine the Renaissance cars to determine whether they contained "undue obstacles" to the mobility of such persons.
[4] Since VIA had already purchased the Renaissance cars, the Agency did not attempt to stop the purchase. It instead proceeded to consider whether the Renaissance cars constituted undue obstacles to persons in wheelchairs by undertaking an examination of the Renaissance cars. Except for a one-day oral hearing on April 8, 2002, the proceeding consisted entirely of letter submissions and responses by the parties and the Agency. Similarly, the Agency rendered most of its decisions on various issues by letter.
[5] This has been a lengthy and involved proceeding. It commenced on December 4, 2000 and the Agency rendered its final decision more than 2 years and 9 months later, on October 29, 2003. In the record, there were approximately 47 letters from the CCD, 57 letters from VIA, 10 from the Agency and 71 letter decisions and orders issued by the Agency. The matters adjudicated by letter largely dealt with production of documents, timeliness of responses, inspection of the Renaissance cars and Agency jurisdiction.
[6] The proceeding culminated with two decisions, both of which are the subject of this appeal.
Preliminary Decision
[7] On March 27, 2003, the Agency issued Decision No. 175-AT-R-2003 (the "Preliminary decision"), being a decision of the majority of a 3-member panel. At issue were 46 concerns raised by the CCD regarding the accessibility of the Renaissance cars. The Agency inspected the Renaissance cars and issued this decision containing its preliminary findings. Of the 46 items raised by the CCD, the Agency found 14 of them to be "undue obstacles". The Preliminary decision is lengthy and detailed and took over two years to be released. After the Agency had made the preliminary findings regarding certain features of the Renaissance cars, it directed VIA to specifically address the findings in its Direction to Show Cause (the "Show Cause Order"), wherein VIA was directed to file answers to 9 complex questions within 60 days from the date of the decision. VIA subsequently filed a response to the Show Cause Order and the Agency, finding the response to be inadequate, gave VIA an additional 60 days to provide further response.
[8] The third and dissenting member, Richard Cashin, did not find any of the obstacles to be "undue". However, Mr. Cashin retired before the Agency rendered its final findings but the Agency's decision-making process was unaffected, since two members constitute a quorum pursuant to subsection 16(1) of the CTA.
Final Decision
[9] Decision No. 162-AT-R-2003 (the "Final decision") was issued on October 29, 2003. Here, the Agency made final determinations on its preliminary findings of undue obstacles. As one of the preliminary issues in this decision, the Agency found that VIA's response to the Show Cause Order had been inadequate.
[10] After addressing the specific undue obstacles, the Agency directed VIA to take corrective measures by re-designing and re-constructing certain aspects of the Renaissance cars that were placed in service. The Agency required that VIA, within 60 days of the date of the Final decision, submit its plan for the timing of the implementation of the modifications as required in the Final decision.
[11] After the Final decision was released, VIA brought a motion to stay both the Preliminary and Final decisions pending this Court's decision on the motion for leave to appeal. The stay was granted by Order dated December 19, 2003 and renewed on June 10, 2003.
[12] Leave to appeal to the Federal Court of Appeal was granted by Order dated March 10, 2004 on the following grounds:
(a) The Agency committed errors of law and jurisdiction by undertaking an examination of an alleged design problem in the train set or consist comprising Renaissance cars, rather than examining an alleged physical problem encountered by an actual passenger with disabilities. The Agency, therefore, erred in law and exceeded its jurisdiction in adjudicating a complaint under section 172 of the Canadian Transportation Act on hypothetical facts upon which there could be no finding of any "obstacle".
(b) Even if the Agency could have found, in the circumstances of this case, that one or more features of the Renaissance cars constituted an obstacle to the mobility of persons with disabilities, it erred in law in finding such obstacles to be "undue". The Agency failed to apply the correct legal test in its determination of "undueness".
(c) The Agency's order is patently unreasonable because it is not rationally connected to any finding of undue obstacle open on the facts of this case.
(d) The Agency erred in law and exceeded its jurisdiction by failing to afford VIA Rail its rights of natural justice and procedural fairness.
VIA's Arguments
[13] VIA's submissions consisted of four arguments. First, it argued that the Agency's jurisdiction pursuant to section 172 to consider the existence of obstacles is derived from actual incidents involving disabled passengers. If no such incident or complaint has occurred, VIA maintains that the Agency's only recourse is to pass regulations under section 170. These regulations must be approved by the Governor in Council. Here, there was no complaint nor incident and the Agency did not pass regulations. Therefore, VIA maintains that the Agency was without jurisdiction to make such an order.
[14] Second, VIA submits that the Agency failed in its determination of whether an undue obstacle exists in the network as a whole. Such an analysis requires a balancing exercise, to be done while taking into account the criteria from section 5 of the CTA, which VIA maintains the Agency failed to undertake.
[15] VIA says that a wrong result by the Agency, that the Renaissance cars had undue obstacles, was unavoidable, due to the Agency having asked itself the wrong question. The correct conclusion would have addressed whether there are undue obstacles in the network as a whole.
[16] Third, VIA argued that the remedy ordered by the Agency was not rationally connected to the undue obstacles found. Rather, VIA found the Agency's order to be disproportionate and excessive since it bore no relationship to the minor impediments to the mobility of persons in wheelchairs. The Agency ordered corrective measures, regardless of the cost, disregarding the need for a network that is economical, efficient, adequate, viable and available to serve the needs of all travellers.
[17] Fourth, VIA submits that its procedural fairness rights were denied when the Agency refused to grant an oral hearing. Accordingly, VIA argued that the Agency's order should be quashed and the matter remitted back to it.
Legislation
[18] There are several provisions of the CTA that must be set out:
5. It is hereby declared that a safe, economic, efficient and adequate network of viable and effective transportation services accessible to persons with disabilities and that makes the best use of all available modes of transportation at the lowest total cost is essential to serve the transportation needs of shippers and travellers, including persons with disabilities, and to maintain the economic well-being and growth of Canada and its regions and that those objectives are most likely to be achieved when all carriers are able to compete, both within and among the various modes of transportation, under conditions ensuring that, having due regard to national policy, to the advantages of harmonized federal and provincial regulatory approaches and to legal and constitutional requirements,
(a) the national transportation system meets the highest practicable safety standards,
(b) competition and market forces are, whenever possible, the prime agents in providing viable and effective transportation services,
(c) economic regulation of carriers and modes of transportation occurs only in respect of those services and regions where regulation is necessary to serve the transportation needs of shippers and travellers and that such regulation will not unfairly limit the ability of any carrier or mode of transportation to compete freely with any other carrier or mode of transportation,
(d) transportation is recognized as a key to regional economic development and that commercial viability of transportation links is balanced with regional economic development objectives so that the potential economic strengths of each region may be realized,
(e) each carrier or mode of transportation, as far as is practicable, bears a fair proportion of the real costs of the resources, facilities and services provided to that carrier or mode of transportation at public expense,
(f) each carrier or mode of transportation, as far as is practicable, receives fair and reasonable compensation for the resources, facilities and services that it is required to provide as an imposed public duty,
(g) each carrier or mode of transportation, as far as is practicable, carries traffic to or from any point in Canada under fares, rates and conditions that do not constitute
(i) an unfair disadvantage in respect of any such traffic beyond the disadvantage inherent in the location or volume of the traffic, the scale of operation connected with the traffic or the type of traffic or service involved,
(ii) an undue obstacle to the mobility of persons, including persons with disabilities,
(iii) an undue obstacle to the interchange of commodities between points in Canada, or
(iv) an unreasonable discouragement to the development of primary or secondary industries, to export trade in or from any region of Canada or to the movement of commodities through Canadian ports, and
(h) each mode of transportation is economically viable,
and this Act is enacted in accordance with and for the attainment of those objectives to the extent that they fall within the purview of subject-matters under the legislative authority of Parliament relating to transportation.
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28. (1) The Agency may in any order direct that the order or a portion or provision of it shall come into force
(a) at a future time,
(b) on the happening of any contingency, event or condition specified in the order, or
(c) on the performance, to the satisfaction of the Agency or a person named by it, of any terms that the Agency may impose on an interested party,
and the Agency may direct that the whole or any portion of the order shall have force for a limited time or until the happening of a specified event.
(2) The Agency may, instead of making an order final in the first instance, make an interim order and reserve further directions either for an adjourned hearing of the matter or for further application.
29. (1) The Agency shall make its decision in any proceedings before it as expeditiously as possible, but no later than one hundred and twenty days after the originating documents are received, unless the parties agree to an extension or this Act or a regulation made under subsection (2) provides otherwise.
(2) The Governor in Council may, by regulation, prescribe periods of less than one hundred and twenty days within which the Agency shall make its decision in respect of such classes of proceedings as are specified in the regulation.
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31. The finding or determination of the Agency on a question of fact within its jurisdiction is binding and conclusive.
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36. (1) Every regulation made by the Agency under this Act must be made with the approval of the Governor in Council.
(2) The Agency shall give the Minister notice of every regulation proposed to be made by the Agency under this Act.
...
41. (1) An appeal lies from the Agency to the Federal Court of Appeal on a question of law or a question of jurisdiction on leave to appeal being obtained from that Court on application made within one month after the date of the decision, order, rule or regulation being appealed from, or within any further time that a judge of that Court under special circumstances allows, and on notice to the parties and the Agency, and on hearing those of them that appear and desire to be heard.
(2) No appeal, after leave to appeal has been obtained under subsection (1), lies unless it is entered in the Federal Court of Appeal within sixty days after the order granting leave to appeal is made.
(3) An appeal shall be heard as quickly as is practicable and, on the hearing of the appeal, the Court may draw any inferences that are not inconsistent with the facts expressly found by the Agency and that are necessary for determining the question of law or jurisdiction, as the case may be.
(4) The Agency is entitled to be heard by counsel or otherwise on the argument of an appeal.
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170. (1) The Agency may make regulations for the purpose of eliminating undue obstacles in the transportation network under the legislative authority of Parliament to the mobility of persons with disabilities, including regulations respecting
(a) the design, construction or modification of, and the posting of signs on, in or around, means of transportation and related facilities and premises, including equipment used in them;
(b) the training of personnel employed at or in those facilities or premises or by carriers;
(c) tariffs, rates, fares, charges and terms and conditions of carriage applicable in respect of the transportation of persons with disabilities or incidental services; and
(d) the communication of information to persons with disabilities.
(2) Regulations made under subsection (1) incorporating standards or enactments by reference may incorporate them as amended from time to time.
(3) The Agency may, with the approval of the Governor in Council, make orders exempting specified persons, means of transportation, services or related facilities and premises from the application of regulations made under subsection (1).
...
172. (1) The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue obstacle to the mobility of persons with disabilities.
(2) Where the Agency is satisfied that regulations made under subsection 170(1) that are applicable in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue obstacle to the mobility of persons with disabilities.
(3) On determining that there is an undue obstacle to the mobility of persons with disabilities, the Agency may require the taking of appropriate corrective measures or direct that compensation be paid for any expense incurred by a person with a disability arising out of the undue obstacle, or both.
5. Il est déclaré que, d'une part, la mise en place d'un réseau sûr, rentable et bien adapté de services de transport viables et efficaces, accessibles aux personnes ayant une déficience, utilisant au mieux et aux moindres frais globaux tous les modes de transport existants, est essentielle à la satisfaction des besoins des expéditeurs et des voyageurs -- y compris des personnes ayant une déficience -- en matière de transports comme à la prospérité et à la croissance économique du Canada et de ses régions, et, d'autre part, que ces objectifs sont plus susceptibles de se réaliser en situation de concurrence de tous les transporteurs, à l'intérieur des divers modes de transport ou entre eux, à condition que, compte dûment tenu de la politique nationale, des avantages liés à l'harmonisation de la réglementation fédérale et provinciale et du contexte juridique et constitutionnel :
a) le réseau national des transports soit conforme aux normes de sécurité les plus élevées possible dans la pratique;
b) la concurrence et les forces du marché soient, chaque fois que la chose est possible, les principaux facteurs en jeu dans la prestation de services de transport viables et efficaces;
c) la réglementation économique des transporteurs et des modes de transport se limite aux services et aux régions à propos desquels elle s'impose dans l'intérêt des expéditeurs et des voyageurs, sans pour autant restreindre abusivement la libre concurrence entre transporteurs et entre modes de transport;
d) les transports soient reconnus comme un facteur primordial du développement économique régional et que soit maintenu un équilibre entre les objectifs de rentabilité des liaisons de transport et ceux de développement économique régional en vue de la réalisation du potentiel économique de chaque région;
e) chaque transporteur ou mode de transport supporte, dans la mesure du possible, une juste part du coût réel des ressources, installations et services mis à sa disposition sur les fonds publics;
f) chaque transporteur ou mode de transport soit, dans la mesure du possible, indemnisé, de façon juste et raisonnable, du coût des ressources, installations et services qu'il est tenu de mettre à la disposition du public;
g) les liaisons assurées en provenance ou à destination d'un point du Canada par chaque transporteur ou mode de transport s'effectuent, dans la mesure du possible, à des prix et selon des modalités qui ne constituent pas :
(i) un désavantage injuste pour les autres liaisons de ce genre, mis à part le désavantage inhérent aux lieux desservis, à l'importance du trafic, à l'ampleur des activités connexes ou à la nature du trafic ou du service en cause,
(ii) un obstacle abusif à la circulation des personnes, y compris les personnes ayant une déficience,
(iii) un obstacle abusif à l'échange des marchandises à l'intérieur du Canada,
(iv) un empêchement excessif au développement des secteurs primaire ou secondaire, aux exportations du Canada ou de ses régions, ou au mouvement des marchandises par les ports canadiens;
h) les modes de transport demeurent rentables.
Il est en outre déclaré que la présente loi vise la réalisation de ceux de ces objectifs qui portent sur les questions relevant de la compétence législative du Parlement en matière de transports.
...
28. (1) L'Office peut, dans ses arrêtés, prévoir une date déterminée pour leur entrée en vigueur totale ou partielle ou subordonner celle-ci à la survenance d'un événement, à la réalisation d'une condition ou à la bonne exécution, appréciée par lui-même ou son délégué, d'obligations qu'il aura imposées à l'intéressé; il peut en outre y prévoir une date déterminée pour leur cessation d'effet totale ou partielle ou subordonner celle-ci à la survenance d'un événement.
(2) L'Office peut prendre un arrêté provisoire et se réserver le droit de compléter sa décision lors d'une audience ultérieure ou d'une nouvelle demande.
29. (1) Sauf indication contraire de la présente loi ou d'un règlement pris en vertu du paragraphe (2) ou accord entre les parties sur une prolongation du délai, l'Office rend sa décision sur toute affaire dont il est saisi avec toute la diligence possible dans les cent vingt jours suivant la réception de l'acte introductif d'instance.
(2) Le gouverneur en conseil peut, par règlement, imposer à l'Office un délai inférieur à cent vingt jours pour rendre une décision à l'égard des catégories d'affaires qu'il indique.
...
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31. La décision de l'Office sur une question de fait relevant de sa compétence est définitive.
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36. (1) Tout règlement pris par l'Office en vertu de la présente loi est subordonné à l'agrément du gouverneur en conseil.
(2) L'Office fait parvenir au ministre un avis relativement à tout règlement qu'il entend prendre en vertu de la présente loi.
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41. (1) Tout acte -- décision, arrêté, règle ou règlement -- de l'Office est susceptible d'appel devant la Cour d'appel fédérale sur une question de droit ou de compétence, avec l'autorisation de la cour sur demande présentée dans le mois suivant la date de l'acte ou dans le délai supérieur accordé par un juge de la cour en des circonstances spéciales, après notification aux parties et à l'Office et audition de ceux d'entre eux qui comparaissent et désirent être entendus.
(2) Une fois l'autorisation obtenue en application du paragraphe (1), l'appel n'est admissible que s'il est interjeté dans les soixante jours suivant le prononcé de l'ordonnance l'autorisant.
(3) L'appel est mené aussi rapidement que possible; la cour peut l'entendre en faisant toutes inférences non incompatibles avec les faits formellement établis par l'Office et nécessaires pour décider de la question de droit ou de compétence, selon le cas.
(4) L'Office peut plaider sa cause à l'appel par procureur ou autrement.
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170. (1) L'Office peut prendre des règlements afin d'éliminer tous obstacles abusifs, dans le réseau de transport assujetti à la compétence législative du Parlement, aux possibilités de déplacement des personnes ayant une déficience et peut notamment, à cette occasion, régir :
a) la conception et la construction des moyens de transport ainsi que des installations et locaux connexes -- y compris les commodités et l'équipement qui s'y trouvent --, leur modification ou la signalisation dans ceux-ci ou leurs environs;
b) la formation du personnel des transporteurs ou de celui employé dans ces installations et locaux;
c) toute mesure concernant les tarifs, taux, prix, frais et autres conditions de transport applicables au transport et aux services connexes offerts aux personnes ayant une déficience;
d) la communication d'information à ces personnes.
(2) Il peut être précisé, dans le règlement qui incorpore par renvoi des normes ou des dispositions, qu'elles sont incorporées avec leurs modifications successives.
(3) L'Office peut, par arrêté pris avec l'agrément du gouverneur en conseil, soustraire à l'application de certaines dispositions des règlements les personnes, les moyens de transport, les installations ou locaux connexes ou les services qui y sont désignés.
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172. (1) Même en l'absence de disposition réglementaire applicable, l'Office peut, sur demande, enquêter sur toute question relative à l'un des domaines visés au paragraphe 170(1) pour déterminer s'il existe un obstacle abusif aux possibilités de déplacement des personnes ayant une déficience.
(2) L'Office rend une décision négative à l'issue de son enquête s'il est convaincu de la conformité du service du transporteur aux dispositions réglementaires applicables en l'occurrence.
(3) En cas de décision positive, l'Office peut exiger la prise de mesures correctives indiquées ou le versement d'une indemnité destinée à couvrir les frais supportés par une personne ayant une déficience en raison de l'obstacle en cause, ou les deux.
ANALYSIS
Jurisdiction
[19] VIA argued that the Agency lacked jurisdiction to inquire under section 172 of the CTA unless an actual incident occurred wherein a disabled individual encountered an undue obstacle to his or her mobility. Accordingly, if no incident has occurred, VIA maintains that the Agency had no jurisdiction to look into a matter.
[20] Rather, VIA argued that the Agency's only jurisdiction to act in this matter was to determine potential undue obstacles pursuant to section 170, which permits the Agency to make regulations to eliminate undue obstacles in the network.
[21] The parties agreed that there had been no previous case in which the Agency had purported to act under section 172 where no incident had occurred.
Jurisdictional Question: Standard of Review
[22] When the court is reviewing decisions of administrative tribunals, the pragmatic and functional approach must be applied. (See Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at paragraph 25). The factors to be considered in this approach are the (1) presence or absence of a privative clause or statutory right of appeal; (2) expertise of the tribunal; (3) purpose of the legislation and the provision; and (4) nature of the question.
[23] First, section 41 of the CTA contains a statutory right of appeal with leave from a decision of the Agency, which suggests a less deferential standard of review. In fact, this Court, in commenting on the statutory right of appeal in the CTA on questions of law or jurisdiction, has decided that once leave is granted, the Agency should be allocated a lower level of deference (Canadian Pacific Railway Co. v. Canada (Canadian Transportation Agency), [2003] 4 F.C. 558 (C.A.) at para. 17 [Canadian Pacific Railway]).
[24] The second factor, relative expertise, is a comparison of the court's expertise to that of the administrative tribunal's and calls for greater deference when the tribunal has more expertise in the particular subject matter than the court (Dr. Q, supra, at paragraph 28). Here, the Agency had to determine its jurisdiction to deal with this problem through the interpretation of sections 170 and 172 of the CTA. As this Court determined in Canadian Pacific Railway, supra, questions of statutory interpretation are within the expertise of the courts, so this also calls for a less deferential standard of review (Canadian Pacific Railway, supra, paragraph 18).
[25] The third factor is the purpose of the legislation and the provision at issue. The Agency implements the regulatory provisions of the CTA, which provide for more deference to the Agency. However, the provisions at issue are contained in Part V of the CTA and have a human rights aspect to them (Agency's Preliminary decision at page 15). Therefore, a lower level of deference is required (Canadian Pacific Railway, supra, paragraph 19.)
[26] Finally, the nature of the question must be determined. Questions of statutory interpretation are legal and therefore militate in favour of less deference (Dr. Q, supra, at paragraph 34).
[27] Taken together, the factors point to a correctness standard on the jurisdictional question.
Interpretation of CTA
[28] In my view, section 172 of the CTA should not be interpreted as suggested by VIA.
[29] Subsection 172(1) gives the Agency the ability to inquire, upon application, into a matter in relation to which a regulation could be made pursuant to subsection 170(1). Subsection 170(1) allows the Agency to make regulations in order to eliminate undue obstacles from the transportation network, including regulations respecting the design, construction or modification of the means of transportation.
[30] Thus, the Agency, pursuant to subsection 172(1), can inquire into matters relating to design, construction or modification of the means of transportation, which is exactly what the Agency undertook to do in the present case. Therefore, I believe the Agency did not exceed its jurisdiction in undertaking the inquiry.
[31] VIA further argued that allowing the Agency to act pursuant to section 172, where no incident had occurred, permitted it to interfere with the planning and operation of the railway. VIA submitted that its board of directors must be free to act without consulting the Agency in matters relating to the purchase and design of rail equipment. To allow this, VIA argued, would be to allow the Agency to "intrude into the boardroom of the company".
[32] While I do not believe that the Agency exceeded its jurisdiction in this case for the reasons given, I do note, with concern, the danger suggested by counsel for VIA. The fact that the CCD, upon learning that VIA was considering the purchase of the Renaissance cars, and prior to even having had the opportunity to inspect the cars themselves, sought an order directing VIA not to enter into any agreement or to take any steps to purchase the Renaissance cars, does suggest an interference with VIA's decision-making. While I am unable to find that the Agency lacked the jurisdiction to consider the CCD's application here, it does seem to me that the nature of the CCD's application resulted in the Agency focussing virtually exclusively on the potential obstacles to the mobility in the cars the CCD believed still had to be purchased. This in turn resulted in the Agency failing to focus on the obstacles in the VIA network as a whole, as will be seen later. This has been indeed unfortunate because it led to the Agency's failure to focus on ways in which the Renaissance cars could be incorporated into VIA's network so the undueness of the obstacles could be avoided.
[33] It may well be that the Agency should have declined to commence an investigation based on the information which it had received from the CCD - that is - that VIA had not actually purchased the cars. Arguably the commencement of the investigation was premature. If the cars had not yet been purchased then they could not create an obstacle. Section 170(1) provides that the Agency may start an inquiry in order to determine whether "there is an undue obstacle to the mobility of persons with disabilities". There could hardly be said to be an obstacle if the cars had not yet been purchased. However, the fact was that VIA had already purchased the cars so the objection to prematurity would have been academic.
[34] It is also worth noting that section 29 of the CTA envisions expeditious hearings with decisions being delivered within 120 days after commencement of the proceedings. The present hearing commenced with the CCD's application which was filed on December 4, 2000. The Preliminary decision was rendered on March 27, 2003, more than two years and 80 interim decisions and rulings later. This perhaps illustrates that the legislature did not intend that issues of the present magnitude be pursued under section 172. Nevertheless the statute must be interpreted according to its current provisions. Accordingly, the Agency's determination of its jurisdiction was correct.
[35] As an additional jurisdictional argument, VIA maintained that in its identification of potential obstacles, the Agency treated the Rail Code (February, 1998 Code of Practice of Passenger Rail Accessibility and Terms and Conditions of Carriage by Rail of Persons with Disabilities), which provides voluntary goals and objectives of the industry, as mandatory, and enforced it against VIA. This was said to be beyond the Agency's jurisdiction. I do not accept that argument since in my view, the Rail Code was not treated as mandatory by the Agency. The Agency indicates at various places that the Rail Code is "voluntary and not legally binding" (Agency's Preliminary decision at page 20) and therefore does not rely exclusively on it when making its undue obstacle findings (Agency's Preliminary decision at page 22). The Agency does, however, find that the standards in the Rail Code serve as a "useful reference point" (Agency's Preliminary decision at page 22).
The undueness analysis:
[36] It was incumbent on the Agency to balance the various interests referred to in section 5 when undertaking its undueness analysis, before requiring expenditure of money to reconstruct or reconfigure the Renaissance cars. The issue of "undueness" was discussed in VIA Rail Canada v. National Transportation Agency [2001] 2 F.C. 25 (C.A.) ["Lemonde"]. In Lemonde, the Court said
In determining whether the obstacle was undue, the Agency should have first considered the aim of the National Transportation Act, 1987. This is found in Section 3(1) (now Section 5), which provides that the nations transportation network should be, inter alia, economic, efficient, viable and effective.
Thus the undueness analysis can only be conducted by an examination of the transportation network as a whole.
[37] Keeping this in mind, the Court in Lemonde set out the following principles to be considered in conducting the undueness analysis.
· undueness is a relative concept;
· the approach to defining undueness is a contextual one; it must be defined in light of the aim of the relevant legislation;
· an assessment of the consequences if the undue thing is allowed to remain in place can be useful;
· there is a requirement to balance the interests of the various parties, who, in proceedings of this nature, are usually persons with disabilities, VIA and the Canadian public;
· the transportation network must serve the needs of all travellers, including those with disabilities; and
· the needs of non-disabled passengers and those of disabled passengers may be inconsistent, which leads to the Agency having to undertake a balancing of interests such that the satisfaction of one interest does not create disproportionate hardship affecting the other interest.
[44] A proper balancing of these factors when considering the entire transportation network will, of course, involve the issue of the costs of the changes to the Renaissance cars and the issue of the impact on other travellers. I will consider each of these issues separately.
Standard of Review
[45] The standard of review analysis requires more deference here. The Agency's expertise is rooted in regulatory matters. Also, section 5 of the CTA is polycentric, meaning that it requires the Agency to balance competing principles. The finding of undue obstacles and the costs of remedying such obstacles are factual findings and the CTA contains a strong privative clause at section 31, calling for deference to the Agency when it comes to findings of fact (CTA, supra, at section 31). Also, the application of section 5 to the issues raised in this case involve questions of mixed fact and law. All these factors, in my opinion, suggest a high level of deference, bringing the standard of review on the question of undueness and the balancing of interests to be one of patent unreasonableness.
Undue Obstacles and Network Analysis
[46] Section 5 of the CTA dictates that the Agency, when faced with a complaint by disabled persons in connection with the facilities offered by a transportation service provider, must go through the following analysis. First, it must determine if there is an obstacle to the mobility of disabled persons. Second, it must examine the whole network of the transportation service provider with a view to determining whether the network itself provides relief such that the obstacle cannot be said to be undue. Where the network does not provide such relief, the Agency must then consider the possible improvements to the network (including possible alternative transportation) which can eliminate or alleviate the undue obstacle. In considering the improvements to be ordered, the Agency must undertake a balancing exercise that takes into account the interests of disabled persons, non-disabled persons, the transportation service provider, as well as the economic well-being and growth of Canada.
[47] Obviously the cost of any improvement ordered is crucial. Similarly, the transportation service provider may be totally unable to fund the improvements. If the costs are excessive, the fares may have to be increased to a point where the average person cannot afford to travel.
[48] In the present case, VIA is subsidized by the federal government, which may be unwilling or unable to fund VIA to the extent of all the improvements ordered. The interests of all disabled persons must also be considered. There are many other disabilities such as blindness, deafness, cardiac conditions, asthmatic conditions, etc. All of these require different facilities. One must not be favoured to the detriment of another. Thus, such consideration cannot be limited to those in wheelchairs. It is also clear that not every railway car and not even every train can be fully equipped to cope with all forms of disability. The cost of so doing would be so great that the transportation service would be unlikely to survive. At the very least, its viability would be severely jeopardized.
[49] In my view, the Agency in the present case made the following errors:
I. In attempting to resolve the undue obstacles which it found for travel by persons in wheelchairs, it confined itself to considering only alterations to the Renaissance cars rather than considering whether VIA's network could be flexible enough to accommodate these disabilities;
II. It failed to conduct the necessary balancing exercise in that it:
a) failed to consider the interests of non-disabled persons;
b) failed to balance the costs of the improvements ordered against the interests of VIA. Here it failed because it did not wait to receive the cost estimates which it had ordered VIA to prepare;
c) failed to balance the interests of persons with disabilities other than wheelchair users without taking into account the total amount of money which could realistically be available.
[50] As previously mentioned, the CCD's December 4 application to the Agency only focussed on the Renaissance cars. VIA responded to the Agency that it was the adequacy of the network that was in issue and that the network as a whole posed no undue obstacles to the mobility of persons with disabilities.
[51] However, the CCD continued to focus its undue obstacle analysis on the Renaissance cars as opposed to the network as a whole. There are several examples of this. In his December 14, 2000 response to VIA's December 12, 2000 letter that was sent to the Agency, David Baker, counsel for the CCD, replied,
Transport Canada officials and CTA officials who viewed the rolling stock [referring to the Renaissance cars], have not provided their opinion as to whether it meets even the voluntary Rail Code, let alone the "undue obstacle" standard in the Canada Transportation Act.
[52] Unfortunately, the Agency responded by also focussing on the Renaissance cars instead of the network. In