Council of Canadians with Disabilities v VIA Rail: What Is Undue Hardship Again?

In the recent case Council of Canadians with Disabilities v VIA Rail, 2007 SCC 15, the Supreme Court of Canada (“SCC”) reviewed the decision of the Canada Transportation Agency (CTA) ordering Via Rail to modify 13 economy coach cars and 17 service cars of the renaissance class to make them wheelchair accessible. In a 5-4 split decision the majority upheld the CTA decision requiring the modification of the cars in question.

The split seems to hinge around whether or not requiring the modifications to the renaissance cars that VIA purchased constitutes undue hardship considering the cost of such measures. For the dissent, it does. The majority seems more focused on ensuring that the rights of disabled people are not counter balanced by the economic concerns of VIA, especially considering VIA’s failure to provide specific evidence of hardship.

In paragraphs 162 and 164, Abella J. for the majority states,

The accommodation of personal wheelchairs enables persons with disabilities to access public services and facilities as independently and seamlessly as possible. Independent access to the same comfort, dignity, safety and security as those without physical limitations, is a fundamental human right for persons who use wheelchairs. This is the goal of the duty to accommodate: to render those services and facilities to which the public has access equally accessible to people with and without physical limitations…

VIA cannot now argue that it was entitled to resile from these norms because it found a better bargain for its able-bodied customers. Neither the Rail Code, the Canada Transportation Act, nor any human rights principle recognizes that a unique opportunity to acquire inaccessible cars at a comparatively low purchase price may be a legitimate justification for sustained inaccessibility.

The dissent cites McLachlin J. (as she then was) in British Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3 SCR 3 [Meiorin], and consider that case as it applies to the issue of whether or not a prima facie discriminatory measure is bona fide. The majority decision is not as concerned with the CTA’s strict adherence to the test set out in Meiorin; for them the CTA can be said to have “substantially complied.”

While the Agency did not conduct a step-by-step application of Meiorin, it did apply its guiding principles and adapted them to its governing statutory mandate. In the absence of specific evidence of undue hardship, the Agency’s rejection of VIA’s economic arguments was consistent with this Court’s guidance in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (“Grismer”), at para. 41 that “impressionistic evidence of increased expense will not generally suffice.” (para 295)

Overall, the strength of the split between the majority and the dissent can be seen in the following comments by Deschamps and Rothstein JJ.,

It is troubling that the majority would uphold an administrative tribunal’s decision by finding that it applied the common law principles when the tribunal expressly rejected them. It is also problematic that the majority would uphold the tribunal’s decision when a basic element, namely the estimated cost of accommodation, was not determined. The majority would forego both the proper legal analysis and ignore the lacking element of cost determination on the basis of deference to the tribunal. With respect, deference is not a proper justification for ignoring such errors. (para 247)

Beyond the legal front though, it is interesting to see how the decision has been portrayed in the media. Janice Tibbetts of Canwest News Service mentions in her article the discrepancy between the VIA estimates of between $48 million and $92 million versus the Canadian Transportation Agency’s assessment of $1 million as to the costs of making the appropriate modifications to their fleet. Looking at the discrepancy between the numbers it seems to lend some credibility to the conerns raised by the dissent. Tibbetts also highlights that VIA had made alternative arrangements for wheelchair bound travelers.

CTV’s coverage included comment from Canada’s first paraplegic MP Manitoba MP Steven Fletcher, “Today’s decision demonstrates that it is no longer acceptable to have places not wheelchair-accessible.”

Where ever you stand on the issue, though, this case just underlies the basic relationship between rights and their economic costs.

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