HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Matthew Wozenilek
Applicant
-and-
The Corporation of the City of Guelph
Respondent
DECISION
Adjudicator: David A. Wright
Indexed as: Wozenilek v. Guelph (City)
APPEARANCES
Matthew Wozenilek, Applicant ) On His Own Behalf
The Corporation of the City of Guelph, Respondent ) Susan Smith, Counsel
INTRODUCTION
1In February 2008, Guelph City Council decided to increase the frequency of Guelph Transit service, to be fully implemented in July of 2008. On most routes, including the route most commonly used by the applicant, service was increased from every 40 minutes to every 20 minutes during the day. The applicant uses a motorized wheelchair and cannot travel on a high floor bus. Until about March of 2009, service generally alternated between low floor buses and high floor buses on his route, meaning regular bus service was available to him only every 40 minutes.
2The respondent states that it did not have enough low floor buses to offer 20-minute service using only low floor buses from the time the change in service was implemented. To make the improvement in service, it had to rent high floor buses pending the arrival of new low floor buses which took 10 months to arrive from the time of purchase, and also use some of the older high floor buses in its fleet.
3The respondent has been gradually replacing older high floor buses with new low floor buses as their lifespan ends. Prior to July of 2008, many routes offered 100% low floor service while some routes had no low floor service. From July of 2008 to October of 2008, all base routes had either low floor service on every other bus or on three of every five buses. Between October of 2008 and March of 2009, as new low floor buses arrived, low floor service was increased to 100% on most routes. Given the orders that have been placed, the respondent’s entire fleet, including spares, is expected to consist of low floor buses by September of 2010.
4The applicant alleges that the differential level of bus service that he experienced from July of 2008 to March of 2009 constituted discrimination with respect to services on the basis of disability, contrary to s. 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). His position is that if it was not possible for all buses to be low floor in June of 2008, the respondent should have waited until the buses were available before implementing the 20-minute service. He also raises the failure of the respondent to make its entire fleet accessible sooner and to plan for the change to 20-minute service. The respondent, in contrast, argues that the prima facie discrimination against the applicant is justified as reasonable and bona fide pursuant to s. 11 of the Code.
5For the reasons that follow, I find that the respondent has met its onus to justify the frequency of low floor bus service during the relevant period, and has shown that it could not further accommodate the applicant without undue hardship. Accordingly, the Application is dismissed.
6The hearing was held on January 26 and 27, 2010. The applicant testified, as did five witnesses on behalf of the respondent. Four of those witnesses work for the City of Guelph: Fred Gerrior, Supervisor of Scheduling and Service Planning; Bill Barr, Manager of Fleet & Equipment; Ryan Hagey, Supervisor of Budgets; and Leanne Warren, Administrator of Disability Services. The fifth, Beatrice Schmied, is a consultant who has worked in the transit industry for many years and gave expert evidence about accessibility of municipal transit systems across Ontario.
THE LEGAL FRAMEWORK
7Sections 1 and 11 of the Code read as follows:
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.
(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
8It is evident that the applicant was unable to access certain bus services offered by the respondent because of his disability, and consequently that there is prima facie discrimination. The central issue is whether this is justified under s. 11 of the Code.
9The legal approach to this question was set out in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868, at para. 20 (“Grismer”). In Entrop v. Imperial Oil (2000), 50 O.R. (3d) 18, 2000 CanLII 16800, at paras. 77-85, the Ontario Court of Appeal found that the Meiorin/Grismer approach, developed by the Supreme Court in cases from British Columbia, also applies in Ontario.
10Under this approach, the respondent must show that:
(1) it adopted the standard for a purpose or goal that is rationally connected to the function being performed;
(2) it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
(3) the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship.
Grismer, supra at para. 20.
11In Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, the Supreme Court discussed the application of this approach to physical barriers at paras. 120-124 as follows:
The same analysis applies in the case of physical barriers. A physical barrier denying access to goods, services, facilities or accommodation customarily available to the public can only be justified if it is “impossible to accommodate” the individual “without imposing undue hardship” on the person responsible for the barrier. There is, in other words, a duty to accommodate persons with disabilities unless there is a bona fide justification for not being able to do so.
The concept of reasonable accommodation recognizes the right of persons with disabilities to the same access as those without disabilities, and imposes a duty on others to do whatever is reasonably possible to accommodate this right. The discriminatory barrier must be removed unless there is a bona fide justification for its retention, which is proven by establishing that accommodation imposes undue hardship on the service provider: Commission scolaire régionale de Chambly v. Bergevin, 1994 CanLII 102 (SCC), [1994] 2 S.C.R. 525 (“Chambly”), at p. 546.
In Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, at para. 79, this Court noted that it is “a cornerstone of human rights jurisprudence . . . that the duty to take positive action to ensure that members of disadvantaged groups benefit equally from services offered to the general public is subject to the principle of reasonable accommodation”, which means “to the point of ‘undue hardship’”. Undue hardship implies that there may necessarily be some hardship in accommodating someone’s disability, but unless that hardship imposes an undue or unreasonable burden, it yields to the need to accommodate.
What constitutes undue hardship depends on the factors relevant to the circumstances and legislation governing each case: Chambly, at p. 546; Meiorin, at para. 63. The factors informing a respondent’s duty to accommodate “are not entrenched, except to the extent that they are expressly included or excluded by statute”: Meiorin, at para. 63.
In all cases, as Cory J. noted in Chambly, at p. 546, such considerations “should be applied with common sense and flexibility in the context of the factual situation presented in each case”.
ACCOMMODATION TO THE POINT OF UNDUE HARDSHIP: RELEVANT FACTS
Changes to Service Frequency
12Prior to September of 2007, the City had a model under which buses generally ran every 30 minutes. Due to traffic calming initiatives, increased ridership demand, traffic congestion and other common delays, buses were often running 10 minutes late. This caused various problems including missed connections, customer dissatisfaction and employee stress.
13Accordingly, in September 2007, the City moved to 40-minute service during peak times and 30-minute service during off-peak times. This kept the same number of buses on the road at decreased frequency but allowed greater reliability of service. There was considerable dissatisfaction with the change among the users of Guelph Transit. Therefore, in February 2008 City Council made the decision to increase to 20-minute service during the day. At the same time, it decided to allocate service so that every route would have low floor service on at least every other trip, which improved the situation on those routes that previously had no low floor service at all.
14Guelph Transit created customer route brochures indicating when low floor buses would arrive at particular bus stops. It also indicated on all “Info Posts” at bus stops which trips would have a low floor vehicle. Its website also indicated which trips would have low floor vehicles.
Purchase of Low Floor Buses
15The City has had a replacement program for buses for several years. This program has provided funding to replace high floor buses with low floor buses on an annual basis, at the end of their useful life of 12-18 years. The cost of a new bus is approximately $465,000. According to the City, the program attempts to strike a balance between adequate service delivery and affordability. At the time the change to 20-minute service was made and this Application was filed, the City was mid-way through this process. The City’s fleet is expected to consist entirely of low floor buses by September 2010.
16When Council made the decision to move to 20-minute service, Guelph Transit had in stock 38 low floor buses and 21 high floor buses. It acquired an additional four low floor buses in May of 2008.
17The move to 20-minute service required the purchase of 10 additional buses, which was approved by City Council resolution in April of 2008. These buses could not be delivered until February 2009. It is typical for there to be a significant lag time between an order for buses and the delivery of those buses. The City therefore rented six high floor buses and retained four older buses that were due for retirement, which it used until early 2009. The City determined, through industry contacts and the internet, that there were no companies that rented low floor buses.
18In October of 2008, the City received a further seven low floor buses that had previously been ordered. In February 2009 it received the 10 low floor buses that had been ordered to implement 20-minute service as well as a further five low floor buses that had been ordered as part of its replacement program. As of March 2009, its fleet consisted of 61 low floor buses and four high floor buses. As of September 2010, its fleet is expected to consist of 65 low floor buses.
19As a result, from July of 2008 to October of 2008, all routes had either low floor service on every other bus or on three of every five buses. Between October of 2008 and March of 2009, as new low floor buses arrived, low floor service was increased to 100% of most routes.
20In response to questions from the applicant about the possibility of having replaced the entire fleet earlier, Mr. Hagey testified that to replace the entire fleet at once would have resulted in a cost of $40 to $50 million and required a significant tax increase. He also stated that retiring buses before they reached the end of their useful life would have led to lost investment.
Other Services Available To People with Disabilities
21Guelph Mobility Service (“Guelph Mobility”) provides services to clients who are physically unable to climb or descend steps used on a high floor bus, walk a distance of 175 m or cannot use conventional transit. Customers must book trips with a dispatcher during set hours, but may call in and cancel trips at any time conventional transit is in operation. Guelph Mobility provides door to door service.
22Guelph Mobility also has “Taxi-Scrip” coupons for customers wishing to book their own trip with the local taxi provider which allow a customer to purchase $40 of value for $20 subsidized by the City of Guelph.
23The applicant had an unsatisfactory experience with Guelph Mobility which made him decide not to continue using it and there was some evidence there have been complaints about this service. In my view, however, the applicant’s unsatisfactory experience does not make the availability of this service irrelevant to the justification analysis.
Other Municipalities
24Of the 100 public transit systems in Ontario, only six operate fully accessible transit systems and many of those are much smaller than Guelph with fewer buses. It was clear from the evidence of Ms. Schmied that the full implementation of low floor bus service this year puts Guelph at the forefront of municipal transit systems in Ontario in this regard.
25Ms. Schmied also testified about the history of the availability of low floor buses. She explained that they became available in the mid-1990s. At that time they were at least 1/3 more expensive than conventional buses. Around the same time, the provincial government withdrew significantly from the funding of municipal transit, and the purchase of low floor buses slowed down for cost reasons. In 2002-03, the provincial government made funding available for the purchase of low floor buses and there was a dramatic increase in the purchase of low floor buses across the province.
Institutional Approaches to Accessibility Issues
26Guelph has an Accessibility Advisory Committee. A sub-committee was assembled to deal with concerns relating to Guelph Mobility. This group was informally consulted following a meeting about the implementation of 20-minute service and the distribution of low floor buses. Guelph Transit also actively identifies barriers through annual accessibility plans.
LEGAL ANALYSIS
27The central question is the third stage of the Meiorin/Grismer test – whether the City has demonstrated that it could not accommodate the applicant without undue hardship.
28I find that the respondent has shown that the use of high floor buses was necessary and that it could not have accommodated the applicant by offering low floor service on every run without experiencing undue hardship.
29The analysis of the undue hardship standard must take into account all of the circumstances in the context of the particular case, considering the statutory criteria of cost, outside sources of funding and health and safety. As the Supreme Court of Canada noted in Via Rail, supra, at para. 127:
The scope of the right of persons with disabilities to be free from discrimination will depend on the nature, legitimacy and strength of the competing interests at stake in a given case. These competing interests will inform an assessment of what constitutes reasonable accommodation.
and at para. 130:
The point of undue hardship is reached when reasonable means of accommodation are exhausted and only unreasonable or impracticable options for accommodation remain.
30In cases like this one dealing with accessibility of infrastructure, the Tribunal must balance both the importance of ensuring accessibility and the reality that necessary changes may take time and significant resources to implement, particularly given the scale of changes that must be implemented by a large organization providing a variety of services to the public. The possibility of phased-in accommodation in some circumstances is recognized in the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate, at para. 5.4.9:
Some accommodations will be very important but will be difficult to accomplish in a short period of time.
In these situations, undue hardship should be avoided by phasing in the accessible features gradually.
Some accommodations will benefit large numbers of persons with disabilities, yet the cost may prevent them from being accomplished. One approach that may reduce the hardship is to spread the cost over several years by phasing in the accommodation gradually.
In many cases, while accommodation is being phased in over an extended period of time, it may still be possible to provide interim accommodation for the individual. If both short- and long-term accommodation can be accomplished without causing undue hardship, then both should be considered simultaneously.
See also Brock v. Tarrant Film Factory Ltd. (2000), 37 C.H.R.R. D/305, 2000 CanLII 20858 (Ont. Bd. Inq.), at para. 96.
31In my view, in interpreting the statutory criteria, relevant considerations in circumstances like these in determining whether the respondent has accommodated the applicant to the point of undue hardship include the following, although there may be others that will apply in particular cases:
Whether the respondent has recognized and appropriately prioritized the importance of equal access for persons with disabilities;
The steps taken and plans developed to eliminate barriers in the relevant categories;
The extent of the changes necessary across the respondent’s operations;
The life of existing infrastructure and the cost of making the changes necessary to ensure accessibility; and
The measures taken to accommodate persons with disabilities using existing infrastructure.
32Considering the circumstances of Mr. Wozenilek’s claim, I find that the respondent has met its burden to show that it has accommodated him to the point of undue hardship in light of the following factors:
It would have been impossible, given its existing fleet, the 9-10 month delay before receiving a purchased bus and the type of buses available for rent, for the respondent to use low floor buses on all runs while implementing 20-minute service.
The respondent organized its services to the extent possible to accommodate needs of passengers with disabilities during the relevant period, ensuring that at least one of every two buses was low floor. It also made low floor service available to areas of the City that did not previously have it. Information about which trips would involve low floor buses was available to the public. While the applicant argues that the website information should have been clearer and better updated, the respondent is not held to a standard of perfection and this does not prevent the respondent from relying on this factor.
Guelph Transit’s existing fleet of buses was not fully accessible at the time of the change to 20-minute service. Each new bus costs over $400,000 and a complete fleet replacement at once would have led to undue costs and tax increases. However, Guelph had a program to replace high floor buses with low floor buses at the end of their lifespan of 12-18 years and was moving rapidly to an accessible fleet. During the relevant period, a large percentage of the respondent’s fleet already consisted of low floor buses since it had been purchasing only low floor buses for several years. It continued to move rapidly toward accessibility, and its entire fleet of 65 will consist of low floor buses by September 2010.
Guelph Transit offered other forms of accommodation for persons unable to use high floor buses, including Guelph Mobility and subsidized taxi rides.
Low floor service levels continued at least at their former levels after the change; they remained at least every 40 minutes. In other words, there was no loss to passengers requiring low floor buses, including the applicant, as a result of the change.
The respondent engaged in active consultation and planning on issues of accessibility on an ongoing basis with the goal of achieving full accessibility.
33The applicant argues that Guelph Transit had to wait until low floor buses were available for most or all trips before implementing 20-minute service. I do not agree that the Code requires this. There would have been no gain to the applicant by doing so, since service levels for him and others who needed low floor buses, would have been every 40 minutes, at the most, in either circumstance. It would be unreasonable to require a delay in implementation of improvements for the broader public served by the respondent to ensure that service levels were identical for those requiring low floor buses. The applicant also argues that the respondent should have planned earlier for 20 minute service. In all the circumstances, it was reasonable, in my view, for the City to decide to implement it several months ahead of the arrival of the low floor buses.
34The applicant also suggests that Guelph should have made its entire fleet accessible sooner by replacing high floor buses earlier. This argument must be evaluated in the context of the respondent’s overall program for replacement. The respondent has a large fleet (65 buses) which will consist only of low floor buses by September 2010, and has been steadily working toward this goal for several years. In all the circumstances, and given the steps the respondent took, I find that it met its duty to accommodate to the point of undue hardship.
35The applicant testified powerfully about the barriers he faces as a person who uses a wheelchair and the frustration and hurt that such barriers cause him. That is understandable and legitimate. It is an unfortunate part of the history of discrimination against people with disabilities and their invisibility to decision-makers that our society designed much of its infrastructure around the needs of persons without disabilities, without consideration of the barriers that were being created for others. The elimination of those barriers, however, is a process that sometimes reasonably requires time and significant expenditure, meaning that full accessibility will not be possible right away.
36I find that the respondent has met its onus to justify the prima facie discrimination under s. 11 of the Code and the Application is dismissed.
Dated at Toronto, this 6th day of August, 2010.
“Signed by”
David A. Wright
Interim Chair