HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Leslie Austin
Applicant
-and-
London Transit Commission
Respondent
DECISION
Adjudicator: Brian Eyolfson
Indexed as: Austin v. London Transit Commission
APPEARANCES
Leslie Austin, Applicant
Self-represented
London Transit Commission, Respondent
Lorraine J. Por, Counsel
Introduction
1This Application was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges that the respondent, London Transit Commission (“LTC”), discriminated against the applicant with respect to goods, services and facilities because of disability.
The applicant’s allegations
2This Application concerns the LTC’s paratransit service, which the applicant describes as a “first come first served, door to door, pre-booked, shared ride system.” More particularly, the applicant explains that to use the LTC’s paratransit, one must book a trip 3 days in advance. The applicant alleges that the “first come first served, advance booking features” of the service violate his right to be free from discrimination in that, as a person with a disability, he is denied equal access to an equivalent public transportation system available to other residents of London, Ontario.
3As an example, the applicant alleges that, on November 22, 2010, he called to book a paratransit trip 3 days in advance and was advised that there were no time slots available. He alleges that he was left with the impression that it was his fault that they could not fit him in because he called to arrange a booking in the afternoon, while the booking line opens at 7:00 a.m., and bookings fill up quickly. He was advised to call in over the next few days to see if anyone had cancelled.
4The applicant also alleges that, on April 12, 2011, he called 3 days in advance to book a trip for a 1:00 p.m. hospital appointment. He was advised that the only available pick-up time was 12:45 p.m., and that his option was to call back on the day of the appointment to see if he could be picked up earlier.
5The applicant submits that it is frustrating, stressful and humiliating to have to compete with other paratransit users for limited services, and that, given the 3-day advance booking requirement, the LTC should be able to accommodate all requests for paratransit rides.
6With respect to remedy, in his Application, the applicant asks that the LTC start guaranteeing trips booked 3 days in advance. He also asks that the LTC eliminate the requirement to call in 3 days in advance, and also eliminate the “first come first served” policy. The applicant indicates in his Application that he would like to see a system whereby a user could pre-book a guaranteed trip up to 3 months in advance, and a trip could also be guaranteed with a minimum of 24-hours notice.
7At the hearing, however, the applicant only addressed the respondent’s 3-day booking window, and indicated that he was requesting a 3-month booking window instead. The applicant did not assert that the respondent’s inability to guarantee paratransit trips is discriminatory, nor did he indicate that he was seeking a remedy that requested paratransit trips be guaranteed.
The respondent’s Response
8In its Response, the respondent explains that it offers both a conventional, fixed-route, scheduled service, and a specialized service. Its specialized transit services encompass a range of service delivery options designed to meet the range of needs of citizens of London who have a disability which prevents them, on a regular basis, from being able to use the respondent’s conventional service. Paratransit, which is a shared ride, door-to-door service for passengers who require a lift-equipped vehicle, is one of the specialized service options offered.
9The respondent explains that its specialized service has two types of bookings: subscription and demand. A subscription booking is for a prescheduled trip that is consistently required for the same day or days, at the same time and to the same destination. A demand booking is any other type of booking, and is based on a “first come, first served” basis. A demand booking can be made up to 3 days in advance of the day of travel. The respondent explains that, because of high demand, the practice amongst riders has become to book a trip as soon as possible in the 3-day “window” to ensure a booking at the time requested.
10The respondent asserts that between March 14, 2003 and April 15, 2011, the applicant requested 6 return trips. Out of those, two trips were unable to be booked at the time that was originally requested, but were accommodated within an hour of the requested time.
11The respondent asserts that there is no prima facie case of discrimination on the basis of disability. It submits that riders on the conventional system do not have a guaranteed trip or time of pick-up, as there are numerous times when a bus is overcrowded and unable to pick up waiting passengers, as well as many areas of the City that do not have access to any, or have limited, conventional transit service. The respondent also submits that there are benefits to riders of the specialized service that are not available to riders of the conventional service, including door-to-door service and guidelines that dictate riders should not be on a vehicle for more than one hour for a one-way trip.
12Alternatively, the respondent submits that its inability to guarantee rides is reasonable and bona fide in the circumstances. It submits that rising operating costs, coupled with significant constraints in public funding, limit the capacity to address demands for conventional and/or specialized services. The respondent submits that the 3-day window supports the efficient and effective use of its fleet of vehicles, which in turn results in the provision of the greatest number of trips possible. The respondent submits that it is accommodating registrants of the specialized service to the point of undue hardship, and that any further accommodation to guarantee a trip on the specialized service would be both unreasonable and impractical from both a financial and an operational perspective.
Preliminary matter
13After the respondent delivered and filed its witness statements for the hearing, the applicant filed a Request for an Order During Proceedings seeking more detailed witness statements. In response, the respondent provided revised witness statements, containing more detail. The revised witness statements were provided to the applicant approximately two weeks prior to the hearing. At the hearing, the applicant did not make any further request concerning the respondent’s witness statements.
WITNESSES
14The applicant gave evidence at the hearing, and the respondent called two witnesses: Kelly Paleczny, Director of Finance and Administration, LTC, and John Ford, Director of Transportation and Planning, LTC. The respondent also submitted numerous documents to the Tribunal.
15Ms. Paleczny testified that, as Director of Finance and Administration, she is responsible for finance, IT systems, and the LTC’s specialized transit services. She has been with the LTC since 1997 and became a Director in 1999. She has dealt with specialized transit services since 1997, and she oversees and is responsible for annual accessibility planning and accessibility legislation.
16Mr. Ford testified that, as Director of Transportation and Planning, he is responsible for operations, planning, and the LTC’s conventional transit services. He has been with the LTC for 22 years and has been a Director for approximately 10 years.
SUMMARY OF EVIDENCE
Applicant’s evidence
17The applicant referred to the respondent’s Response wherein it states that he requested a trip for a 10:30 a.m. pick up on November 25, 2010, which could not be obtained, but he was picked up at 9:52 a.m. The applicant testified that he was really early for his medical appointment.
18The applicant also referred to the statement in the respondent’s Response that he requested a trip for a 12:15 p.m. pick up on April 15, 2011, which could not be accommodated, so he was booked for a 12:48 p.m. pick up, but cancelled the trip. The applicant testified that he had a 1:00 p.m. appointment at a hospital, and he could not accept the 12:48 p.m. trip as there was no way he would get to his appointment on time.
19The applicant testified that he has clinic appointments that are arranged at least 6 months in advance, and that he has medical and dental appointments scheduled every 3 months and 6 months, respectively. He testified that he finds it too stressful to wait until 3 days before an appointment, so he is not a big user of paratransit, which is unfortunate because he would like to be. Instead, he depends on others and makes alternate arrangements for medical appointments. He also testified that he cannot commit to social events that he is aware of months in advance not knowing if transportation will be available.
20In cross-examination, the applicant confirmed that he can use the conventional transit system if a bus is accessible. He also testified, however, that he no longer lives on a bus route, and that the nearest bus route is “a fair bit away”. He also confirmed that he drives a car.
Respondent’s evidence
21Ms. Paleczny explained that, in 1996, the respondent, LTC, took over control of the provision of specialized transit services, which were previously provided by the City of London. At the time, a paratransit advisory committee advised the City and provided feedback regarding the services. Ms. Paleczny testified that customers were not satisfied with the quality and level of paratransit service.
22When the LTC took over the provision of specialized transit services in 1996, the services were provided by a contractor. When the contract expired in 1998, the LTC adopted a brokerage model, and contracted out only the drivers and vehicles. The LTC took control over booking and scheduling, which also gave it control over the related data to enable it to come up with ways to best provide the services.
23Ms. Paleczny testified that, between 1996 and 1998, the LTC established an expanded accessibility advisory committee to advise it on how to best respond to concerns. The LTC reviewed all policies related to specialized services, and conducted a statistically valid telephone survey of its customers to obtain feedback on what the issues and priorities were. The LTC also made contact with a number of other transit systems to ascertain best practices, and various options were considered. Ms. Paleczny testified that the LTC prioritized issues, in consultation with the advisory committee, with which it met on a monthly basis during the first year, and based on feedback from the customer survey.
24Ms. Paleczny testified that one of the biggest complaints, between 1996 and 1998, was with respect to the punctuality of the service, which was frustrating for customers who had appointments. Another complaint was that customers spent too long on vehicles, because of other pick-ups and drop-offs. A third issue identified was the lack of availability of trips, or “non-accommodated” trips, in that customers could not always schedule a trip for the time they wanted. Ms. Paleczny testified that, since that time, the LTC has significantly improved both “on-time” reliability and ride time. She explained that, having moved to a computerized system, parameters can be programmed, such as not putting a fifth person on a vehicle if it causes the schedule to be too “tight”, or not accepting a booking if a person will be on a vehicle for over an hour.
25Ms. Paleczny testified that, in addition to replacing its conventional buses with low-floor, accessible buses, the respondent adopted a “family of services” model to address various accessibility needs in the community. The service options include paratransit, as well as the following services:
A community bus for a particular London neighbourhood that has a significant population of seniors and persons with disabilities, and for which the LTC determined the community’s travel needs and patterns. The community bus has a fixed route to a different destination each day, but the driver can also deviate from the standard route on request;
A workshop shuttle program, primarily for registrants who have cognitive disabilities and attend work on a daily basis, developed in consultation with the community;
A travel training program, in partnership with Community Living London, to train persons with cognitive disabilities to use the LTC’s conventional service on their own; and,
A “get on board” program to encourage registrants of the LTC’s specialized services to use accessible conventional services. The LTC will, for example, attend seniors centres with buses and teach people how to read schedules and use accessible buses. In conjunction with this service, the LTC has a “non-peak” pass program whereby anyone eligible for the “family of services” can use the conventional service for free on “off hours” and all day on weekends and holidays.
26With respect to scheduling paratransit trips, Ms. Paleczny explained that the LTC has subscription bookings for regularly scheduled trips, and demand bookings for which registrants can begin calling 3 days in advance. She explained that the respondent tries to keep the number of subscription bookings system-wide at between 40 to 45% in order to maintain availability for demand bookings. Ms. Paleczny testified that if a trip is not available when requested, registrants are encouraged to call back up to one hour prior to the requested trip time.
27Ms. Paleczny described cancellations as an inherent part of the process, and explained that cancellations allow the respondent to potentially fill trip requests up to the day of the requested trip. Ms. Paleczny explained that, in 1996, the booking “window” was 7 days. She testified that customers wanted a shortened booking window because they believed 7 days was too far in advance to plan for a trip. Ms. Paleczny testified that, having received that feedback, and a recommendation from the advisory committee, the respondent looked at other transit systems.
28Ms. Paleczny testified that the Canadian Urban Transit Association collects statistics that the respondent looked at, and that booking windows for when a trip can be requested varied across Canada from 30 days to one day. She also testified that the time periods for being able to call in and check for cancellations varied from no longer being able to check for cancellations at 3 days prior to the requested date of travel, to being able to check for cancellations on the requested day of travel.
29Ms. Paleczny also testified that, based on the timing of trip cancellations the respondent received, relative to the time of requested trips, the respondent believed that customers had a better idea at 3 days prior to the date of the requested trip if they would actually be travelling on that day. She testified that 3 days was seen as a balance between giving customers flexibility, and being able to respond to cancellations up to the actual day of travel. The LTC moved to a 3-day booking window in 1999.
30Ms. Paleczny also testified that successful same-day bookings require a very good dispatcher. She explained that many transit systems say that they have same-day bookings but their same-day bookings may be less than 1% of their bookings, whereas 9% of the LTC’s bookings are same-day bookings.
31With respect to the availability of paratransit rides, Ms. Paleczny testified that changing the booking window from 3 days to 7 days or 30 days would not guarantee all users of paratransit a ride. She explained that the respondent operates within the confines of a budget allocated from the municipality, and the budget is not large enough to provide for all of the requested trips, with both the specialized and conventional services, so some trip requests cannot be accommodated.
32Ms. Paleczny testified that if the respondent moved to a 30-day booking window the service would be filled up 30 days instead of 3 days in advance, however, there would be a big difference in that the respondent would have to deal with 29 days of cancellations and rescheduling. She testified that a lot would happen in terms of cancellations and rescheduling, and there would be a significant amount of change during that time period that would require administrative resources to deal with. She testified that this would result in an increase in administration, and the respondent would have to increase spending on administration which would come out of funding used for providing a greater number of trips. She testified that moving to a 30-day booking window would, therefore, result in the respondent providing fewer trips.
33Ms. Paleczny also testified that there is no demand to be able to book 30 days in advance, and, based on consultations in 1998 and 1999, people wanted a shorter rather than a longer booking period, as compared to the 7-day booking period that existed at the time. She testified that the majority of the door-to-door specialized service is not for medical appointments, but is for shopping and other things. She also testified that many people get trips that are requested on the same day.
34Ms. Paleczny was asked if the LTC’s accessibility advisory committee ever identified changing the booking window as a priority since it was last changed. She testified that there was a concern to have a shorter booking window, and after the change from 7 days to 3 days, the booking window was no longer a concern. She testified that it appeared that the move from a 7-day to a 3-day booking window addressed the concern to have a shorter booking time, and there have been no requests to have it extended as compared to shortening it.
35With respect to trip costs, Ms. Paleczny testified that all fares accepted on the conventional service are accepted with the specialized service. A single fare is $2.75 and a monthly pass is $81.00. Ms. Paleczny testified that the actual cost of a paratransit ride, based on 2012 numbers, is between $16.50 and $17.00, after a fare is paid. According to the LTC’s 2011 Annual Report, the total cost of a paratransit trip in 2011 was $16.15; however, Ms. Paleczny testified that costs have since increased due to labour and fuel.
36Ms. Paleczny testified that the LTC’s primary source of funding is the municipality. It also receives revenue from its ridership, and limited operating funding from advertising revenues. The province also provides an annual gas tax grant, which is not a significant amount, and the federal government provides capital funding for infrastructure from time to time. Ms. Paleczny testified that the LTC does not have enough funding, and it also cannot meet requests for conventional services. She testified that the LTC has a funding gap between what is requested and what it can afford, and the funding gap continues to grow and is compounded by the municipality not wanting to raise taxes. Ms. Paleczny testified that the LTC adds between 50 and 60 registrants to its specialized services each month, which increases the demand for trips, and that funding is the greatest challenge to specialized transit in London.
37Ms. Paleczny testified that the LTC’s top priority with specialized transit is to provide the most trips it can with the available funding. Documentation prepared by Ms. Paleczny indicates that, between 1996 and 2010, ridership on the specialized and conventional services increased by 75.7% and 77.9%, respectively, and hours of service with the specialized and conventional services increased by 86.3% and 13.8%, respectively. Ms. Paleczny explained, and Mr. Ford confirmed, that improvements to both the conventional and specialized services approved in 2012 were deferred as a result of a direction from the municipality to have no increase in budget. As set out in an August 29, 2012 staff report signed by a number of individuals, including Ms. Paleczny and Mr. Ford, the target established for the percentage of non-accommodated trips on the specialized service remained at 2.2% for a number of years, however, given the deferral of growth in 2012, the target was not expected to be attained.
38A staff report dated September 26, 2012, and signed by both Ms. Paleczny and Mr. Ford, indicates that, between 2011 and 2012, with respect to the conventional service, reports of overcrowding and missed passengers increased by 68%, and requests for additional service increased by 173%.
39Mr. Ford testified that the LTC’s conventional service, although efficient and effective, is underfunded. He explained that the LTC does not meet all demands for service in terms of hours and frequency, and that a lot of people are crammed on buses. He testified that there has been an increase in the number of complaints regarding overcrowding and schedule adherence. Mr. Ford explained that there has been an increase in ridership since 1996, and that buses can be late because of factors including the increased demand, traffic, and weather. Mr. Ford testified that users of the conventional service cannot always get a ride, and may have to wait for the next bus because of overcrowding. He testified that the LTC does not have the resources to meet all of the demand.
40With respect to specialized services, the September 26, 2012 staff report indicates that the non-accommodated trip rate began to climb since the 2012 service growth was put on hold. Ms. Paleczny testified that the non-accommodated trip rate climbed significantly because there was no growth in service and 50 to 60 new registrants are added each month. She also testified that the LTC was facing the possibility of no increase in funding from the municipality for 2013, which would result in reduced services in both conventional and specialized transit, including reduced ridership and a reduction in customer satisfaction. Mr. Ford testified that anything below the staff recommendation of a 5.7% increase in funding in 2013 would mean a reduction in conventional transit services, including a reduction in service hours and an elimination of some routes at times or entirely, and a reduction in hours and trips with respect to specialized transit services.
41Ms. Paleczny testified that London has one of the most effective and efficient transit services in Ontario, and is seen to be at the forefront on accessibility issues. The City of London adopted “facility accessible design standards”, and LTC was one of the first transit services to move to a “family of services” concept. The LTC’s 2011 Annual Report indicates that the LTC’s specialized transit service receives one of the lowest levels of municipal funding on a per trip basis, and has one of the lowest operating costs per trip, averaging approximately 50% of the Ontario average. For example, in 2010, the LTC’s municipal operating investment per trip was $12.16, whereas the Ontario average was $25.30, and the LTC’s total operating cost per trip was $15.81, whereas the Ontario average was $28.88. Mr. Ford testified that the LTC is one of the least-funded transit systems in Canada.
42Ms. Paleczny was asked what it would take for the LTC to provide the applicant with a trip every time he requested one. Having regard to the current level of non-accommodated trips, the growing pressures on the service, including adding 50 to 60 registrants per month, and the actual cost per trip, Ms. Paleczny estimated that the LTC would have to be prepared to provide, at a minimum, 50,000 additional trips per year, which would cost an additional $1,000,000 per year. She also explained that a significant number of people who qualify for special services use the conventional service, and testified that if the LTC guaranteed rides on specialized services, a significant number of customers would prefer the door-to-door service over the conventional service.
ANALYSIS AND DECISION
Relevant Code provisions
43Sections 1, 9, 11 and 17 of the Code state as follows:
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of… disability.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
(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.
- (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.
(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person 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.
Does the applicant have a disability within the meaning of the Code?
44In his Application, the applicant states that he relies on a motorized electric wheelchair for all of his mobility needs. At the hearing, the applicant referred to his paratransit registration form wherein his physician confirmed that the applicant has permanent mobility limitations, and cannot climb or descend steps used on conventional public transit facilities. The applicant’s physician also indicates that the applicant has multiple sclerosis (“MS”), and uses a motorized scooter. The respondent’s passenger documentation concerning the applicant indicates that he uses both a scooter and a power wheelchair.
45“Disability” is defined in s. 10 of the Code, in part, as “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness…” The respondent agreed in its final submissions that the applicant is a person with a disability within the meaning of the Code.
46I the circumstances, I find that the applicant has a medical condition and mobility limitations that constitute a disability within the meaning of the Code.
Was the applicant subjected to discrimination on the basis of disability in the provision of public transit services?
Has the applicant established a prima facie case of discrimination on the basis of disability?
47In my view, the service in question is public transit in London, Ontario. The respondent submitted in its Response to the Application, as is set out in its Policies & Procedures Manual on specialized transit services, that its specialized services are designed to meet the range of needs of the citizens of London who have a disability which prevents them, on a regular basis, from being able to use the respondent’s regular, fixed-route transit service. Paratransit is one of a number of specialized services that the respondent offers, and I find that the respondent’s paratransit service is a form of accommodation for persons with disabilities in the context of providing public transit services.
48The applicant alleges in his Application that, due to certain booking features of the respondent’s paratransit service, he has been denied equal access to an equivalent public transportation system available to other London residents. At the hearing, the applicant submitted that the 3-day booking window with paratransit is a barrier to accessible transportation, as compared the conventional system, and that the respondent should offer comparable paratransit services. He submits that able-bodied residents have access to a predictable and reliable service, which paratransit is not, and that able-bodied residents can plan and schedule medical and dental appointments months in advance. The applicant seeks to be able to plan his life the same way users of the conventional system are able to. He submitted that he is seeking the same level of service and predictability as the conventional service, which requires extending the 3-day booking window; otherwise, he will not use paratransit for medical appointments, and will continue to use other means.
49In my view, in asserting that the respondent’s specialized transit does not provide an equal or a reasonable alternative to conventional transit, the applicant is essentially alleging that the respondent has failed to provide him with reasonable accommodation short of undue hardship in the provision of transit services. The applicant, however, bears the initial onus of establishing that a prima facie case of discrimination exists in the circumstances.
50As the Tribunal explained in Baber v. York Region District School Board, 2011 HRTO 213 at para. 88, the duty to accommodate is not a free-standing obligation under the Code. The Tribunal in Baber provided the following comments with respect to the duty to accommodate in cases alleging discrimination in employment, at paras. 91 to 93:
As is always the case under the Code, the applicant bears the initial onus of establishing a prima facie case of discrimination. Only at that point does the inquiry shift to whether the respondent employer fulfilled its duty to accommodate the applicant to the point of undue hardship: Ontario Human Rights Commission v. Simpsons-Sears Limited, 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536 at para. 28.
In this case, if the duty to accommodate does arise, it must arise under s. 11 of the Code. It does not arise under s. 17 of the Code because the respondent does not assert that the applicant was incapable of performing the essential duties of her job and/or seek to avail itself of the defence in s. 17(1) of the Code.
In order to trigger the duty to accommodate under s. 11 of the Code, the applicant would have to show that a neutral “requirement, qualification or factor” – such as the requirement that she undergo a TPA or perform her regular teaching assignment – had an adverse effect on because of her disabilities. If the applicant thus made out a prima facie case of adverse effect discrimination, the onus would shift to the respondent to show that its requirement(s) were reasonable and bona fide, including, but not limited to, by showing that the applicant’s disability-related needs could not be accommodated without undue hardship (s. 11(1)(a) and s. 11(2)). (See also British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (S.C.C.), [1999] 3 S.C.R. 3 (“Meiorin”), at para. 54).
51In some cases alleging discrimination with respect to the provision of public transit services, it may be evident that an applicant with a disability is unable to access certain transit services, and the central issue is whether the respondent can establish that it cannot accommodate the applicant without incurring undue hardship. See, for example, Wozenilek v. Guelph (City), 2010 HRTO 1652. In the present case, however, the respondent raises a number of arguments in support of its contention that the applicant has not established a prima facie case of discrimination with respect to its booking procedure for specialized transit.
52First, the respondent argues that both its specialized and its conventional transit systems operate on a “first-come, first-served” basis, and there is no differentiation in this regard. The respondent also submits that riders on the conventional transit system do not have a guaranteed trip, nor do they have a guaranteed time of pick-up, as there are numerous times when a bus is overcrowded and unable to pick up waiting passengers. The respondent submits that, in 2010, it received 396 complaints from passengers who were bypassed by a bus, and 325 complaints about buses running either early or late. The respondent also argues that it is not fair to compare its door-to-door paratransit service with its conventional service, and that the 3-day booking procedure is directly related to the nature of the door-to-door specialized transit service. The respondent does, however, indicate that there is a distinction or disadvantage in that the applicant has to book a ride on the door-to-door service 3 days in advance.
53The respondent also asserts that the applicant can take accessible conventional transit, but he does not live near a bus route. The respondent submits that, although the applicant does not live near a bus route, he nevertheless has access to public transit because he is eligible for its specialized services. The respondent submits that a non-disabled citizen who does not live near a bus route would not have access to any public transit, and that there are many areas of the City that do not have access to any conventional transit service at all.
54Based on the evidence, it appears that, on one occasion, the applicant was picked up by paratransit 38 minutes earlier than requested, and, on another occasion, the applicant was offered a 12:48 p.m. pick up for a 1:00 p.m. appointment, which he did not accept. With respect to this latter occasion, the applicant does not appear to have called the respondent again to try to obtain a more suitable pick-up time. The applicant also testified that, on another occasion, a bus was sent to his previous address. He called the respondent and the situation was resolved with a bus being sent to his correct address, but he was late for a medical appointment.
55While the applicant asserts in his Application that he cannot use the conventional transportation system, he was clear in his oral evidence that he can use the conventional system when an accessible bus is available. He also indicated in his paratransit registration form that he is able to get on and off the LTC’s buses if they are accessible, and that he is able to move unassisted to a bus stop by using his scooter.
56In its Response to the Application, filed June 7, 2011, the respondent indicates that 32 of its 38 conventional routes are fully accessible, and that its conventional, low-floor buses would be an option for the applicant. In his Reply to the respondent’s assertion that its conventional, low-floor buses would be an option for him, the applicant simply asserts that the respondent’s website states that accessible conventional transit is not a replacement for paratransit. The applicant did not actually address the respondent’s assertion that its conventional, low-floor buses would be an option for him.
57Ms. Paleczny testified that, beginning in 1998, the LTC had a replacement schedule to replace all of its buses with low-floor, accessible buses. She explained that they did not classify a bus route as accessible until they could guarantee that every bus on the particular route would be a low-floor bus. She testified that, as of April 2012, their entire fleet consists of low-floor, accessible buses that have no steps, and “kneel”. The buses also have ramps that “flip out” so that passengers using mobility devices can board the buses. Ms. Paleczny also testified that people who qualify for specialized transit services can still use conventional transit and are encouraged to do so.
58Based on the evidence, it appears that during the time period relevant to the allegations in the Application, a considerable majority of the respondent’s bus routes were fully accessible. It is not clear from the evidence, however, whether or not there were accessible conventional bus routes available to the applicant that he could have accessed to travel to the various destinations for which he booked or attempted to book paratransit. I note that the applicant did not dispute the respondent’s assertion, in both its written Response and submissions at the hearing, that its accessible conventional transit is an option for him. At the hearing, the applicant acknowledged that the respondent encourages people with disabilities to use regular transit, but simply reiterated that the respondent’s website states that accessible regular transit is not a substitute for paratransit.
59Ms. Paleczny testified that, whereas specialized transit services are available throughout the City of London, there are many areas of London that do not have conventional transit service as there are no routes to those areas. She testified that if a person does not qualify for specialized transit services, and does not live near a bus stop, they simply do not have access to public transit. Mr. Ford also confirmed that the conventional transit service does not cover the entire City, and there is a need for more routes. He testified that the door-to-door service, on the other hand, covers the entire City, and is available throughout the whole day, whereas the conventional service varies by time of day.
60As I understand the applicant’s evidence, when he first applied for paratransit in 2002 he lived near a bus route. He then left London for a period of time, but moved back to London in April 2010, at which point he re-applied for registration with paratransit. The applicant testified that, after moving back to London, he does not live on a conventional bus route, and the nearest bus is a fair bit away. It is not clear from the evidence exactly how far the applicant lives from the nearest bus route, but it appears that the applicant lives in a neighbourhood that is essentially not serviced by a conventional bus route.
61Alternatively, it may be that the nearest bus route to the applicant is of a distance that he finds inconvenient to access. Again, it is not clear from the evidence whether or not conventional bus routes nearest to the applicant’s home, and other bus routes that would have been appropriate for travel to the various destinations for which the applicant booked or attempted to book paratransit, were accessible. It is clear, however, that the applicant can use accessible, conventional transit, and it also appears that during the time period relevant to the Application, a considerable majority of the respondent’s bus routes (i.e. 84%) were fully accessible. The applicant also did not dispute the respondent’s assertion that conventional transit is an option for him, and acknowledged that he is able to ride the respondent’s accessible conventional transit.
62While the evidence before me is limited, the applicant bears the onus of establishing a prima facie case of discrimination. First, it appears from the evidence that, upon returning to London, the applicant moved to a neighbourhood that is essentially not serviced by a conventional bus route. However, because the applicant is eligible for the respondent’s specialized services, which are available throughout the City of London, the applicant has access to public transit at his door through paratransit. While the applicant described the nearest conventional bus route as “a bit far away”, he has not established that he could not have used the nearest conventional transit to reach the various destinations for which he booked or attempted to book paratransit. In the circumstances, it appears that the applicant is in the same position as an able-bodied neighbour, in that the nearest conventional transit is of a distance that is likely either inconvenient to access, and may require other means to access, such as driving or getting a ride to the nearest route. As such, any disadvantage that the applicant experiences in accessing the respondent’s conventional transit service appears to be related to the applicant’s place of residence, rather than disability.
63In all of the circumstances, I do not find that the applicant has established on a balance of probabilities that he is disadvantaged, on the basis of disability, as a result of the respondent’s paratransit booking features as alleged. I find that the applicant has not made out a prima facie case as he has not established that he could not access the respondent’s conventional transit services because of his disability, such that the respondent’s paratransit booking features, particularly the 3-day booking window, result in disadvantage to the applicant because of his disability.
64Since the applicant has not established a prima facie case of discrimination, it is not necessary to consider whether the respondent has established a defence under the Code. In any event, had I found that the applicant established a prima facie case of discrimination, for the reasons set out below, I find that the respondent has nevertheless established that it provided reasonable accommodation to the point of undue hardship in the circumstances.
Has the respondent established accommodation to the point of undue hardship?
65The Supreme Court of Canada held that where an applicant establishes that a rule is prima facie discriminatory, the onus shifts to the respondent to prove on a balance of probabilities that the discriminatory rule has a reasonable and bona fide justification. See 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 also applies in Ontario.
66Under this approach, as noted in Grismer at paragraph 20 and Meiorin at paragraph 54, a 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 to the fulfilment 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.
67As noted above, in his original Application, the applicant took issue with both the respondent’s 3-day booking window, and its inability to guarantee paratransit trips when requested. In his evidence and submissions at the hearing, however, the applicant only addressed the respondent’s 3-day booking window. He submitted that, to offer some predictability and certainty, he was requesting a 3-month booking window, and that trips be scheduled as requested. He described the 3-day booking window as an unreasonable barrier that should be extended.
68Although the applicant did not pursue the argument at the hearing, to the extent that the applicant may be continuing to allege that the respondent’s inability to guarantee all requested paratransit trips is discriminatory, in my view, the central question is whether the respondent has demonstrated that it could not accommodate the applicant without undue hardship. In the circumstances, I find that the respondent’s inability to guarantee all requested paratransit trips is reasonable and bona fide. The respondent provided considerable evidence concerning its limited resources and ability to meet all of the demands with respect to both its conventional and specialized services. In my view, based on the evidence, it is simply not possible for the respondent to guarantee all demand bookings requested, and to do so would clearly amount to undue hardship for the respondent within the meaning of the Code.
69With respect to the 3-day booking window, the respondent submits that the 3-day booking procedure is directly related to, and inherent in, the nature of the paratransit service, which needs to be arranged in advance, and the needs of its customers. It submits that the 3-day booking window balances the service priorities as identified by the community of people with disabilities, with the fiscal reality of resources available to the LTC to accomplish those service priorities. The respondent submits that it would be impossible in light of its resources to provide all paratransit riders with a ride whenever they request it, and the 3-day booking window is reasonable and bona fide in the circumstances.
70With respect to the first two branches of the Meiorin/Grismer approach, I am satisfied based on the respondent’s evidence that the 3-day booking window was established in light of information from customers that a shorter booking period was desired, a recommendation from the respondent’s advisory committee at the time, and having looked at other transit systems. A 3-day booking window was also seen as an appropriate balance between giving customers flexibility, and the respondent being able to respond to cancellations. In my view, the purpose of the 3-day booking window is rationally connected to the provision of demand bookings with the respondent’s paratransit service, and has “a legitimate general purpose underlying it”. See Meiorin, supra, at para. 59. In light of the same evidence, I am also satisfied that the respondent’s 3-day booking window was adopted in good faith. The main question, which has both procedural and substantive aspects, is whether the respondent has demonstrated that it could not accommodate the applicant without undue hardship. See Meiorin, at para. 66.
71In Wozenilek, supra, the applicant alleged discrimination on the basis that the respondent’s buses were not all accessible at the relevant time. In that case, the Tribunal held that the 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. The Tribunal also referred to the Supreme Court of Canada’s decision in Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, wherein the Court states as follows at paras. 127 and 130:
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. …
The point of undue hardship is reached when reasonable means of accommodation are exhausted and only unreasonable or impracticable options for accommodation remain.
72The Tribunal in Wozenilek, supra, at para. 31, held that, in interpreting the statutory criteria, relevant considerations in determining whether the respondent has accommodated the applicant to the point of undue hardship, in circumstances like those in Wozenilek, 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.
73In the present case, the respondent submits that its assessment of the costs in order to support, and even sustain, its current specialized service is well-analyzed and well-managed. The respondent submits that it has considered alternatives and has improved the booking window from 7 days to 3 days. The respondent also submits that all of the competing demands on it are legitimate and need to be taken into account when assessing reasonable accommodation with respect to the booking window. The respondent submits that the 3-day booking window is reasonable and bona fide in the circumstances in that it is reasonably necessary to accomplish the respondent’s goal of maximizing service potential for its customers with disabilities, and to change the 3-day booking window would constitute undue hardship.
74The applicant, on the other hand, submits that there would be no costs to the respondent with booking 3 months in advance, and there is no evidence that moving to a 3-month booking window would cause undue hardship to the respondent. The applicant identified three other municipalities in Ontario that allow bookings 7 days in advance.
75Having carefully considered the parties’ evidence and submissions, I am satisfied that the respondent has provided accommodation to the point of undue hardship. To begin with, it is clear from the evidence that the respondent does not have the resources to meet all demands it receives for transit services, with respect to both its conventional and specialized services.
76Ms. Paleczny testified that the respondent’s funding gap between what is requested and what it can afford continues to grow, and funding is the greatest challenge to specialized transit in London. The LTC also adds between 50 and 60 registrants to its specialized services each month, which increases the demand for trips. The evidence also indicates that the target established for non-accommodated trips on the specialized service remained at 2.2% for a number of years, however, given the deferral of growth in 2012, the target was not expected to be attained.
77With respect to the LTC’s conventional service, the evidence indicates that between 2011 and 2012, reports of overcrowding and missed passengers increased by 68%, and requests for additional service increased by 173%. Mr. Ford testified that the LTC’s conventional service, although efficient and effective, is underfunded, and does not meet all demands for service in terms of hours and frequency. He also testified that users of the conventional service cannot always get a ride, and may have to wait for the next bus because of overcrowding.
78I find that within the context of not being able to meet all demands for services, and, in particular, of not being able to guarantee every requested paratransit ride, the respondent developed a booking procedure for its paratransit service. At the same time, the respondent has undertaken a number of initiatives to increase accessibility of transit services to person with disabilities. Following a replacement schedule, as of April 2012, all of the LTC’s conventional buses are low-floor, accessible buses. Ms. Paleczny also testified that, with respect to its specialized services, the LTC adopted a family of services model, including paratransit, a community bus, a workshop shuttle, travel training and “get on board” programs.
79Ms. Paleczny testified that when the LTC took over specialized transit services, it established an expanded accessibility advisory committee, reviewed all policies related to specialized services, and conducted a telephone survey to obtain feedback from customers. The LTC also made contact with a number of other transit systems to ascertain best practices.
80Ms. Paleczny testified that, at the time the LTC took over specialized transit, the booking window for paratransit was 7 days, but customers wanted a shortened window because they believed 7 days was too far in advance to plan. Ms. Paleczny testified that, having received that feedback, and a recommendation from the advisory committee, the respondent looked at other transit systems. She also testified that 3 days was seen by the LTC as a balance between giving customers flexibility, and the LTC being able to respond to cancellations.
81Ms. Paleczny testified that moving to a longer booking window (i.e. 30 days) would cause the service to fill up much earlier in advance, however, there would be a big difference in that the respondent would have to deal with a longer period of cancellations and rescheduling. She testified that a lot would happen in terms of cancellations and rescheduling, and there would be a significant amount of change that would require administrative resources to deal with. She testified that this would result in the respondent having to increase spending on administration, which would come out of funding used for providing a greater number of trips. She testified that moving to a longer booking window would, therefore, result in the respondent providing fewer trips.
82Ms. Paleczny also testified that there is no demand for a longer booking period, and, based on consultations in 1998 and 1999, people wanted a shorter rather than a longer booking period, as compared to the 7-day booking period that existed at the time. With respect to the LTC’s accessibility advisory committee, Ms. Paleczny testified that there was a concern to have a shorter booking window, and that it appeared the move from a 7-day to a 3-day booking window addressed that concern, and there have been no requests to extend the booking period as compared to shortening it. I also note that the applicant testified that he approached a member of the respondent’s accessibility advisory committee who advised him that he did not think that his complaint about the 3-day booking window would proceed through the committee.
83In the circumstances, I find that the respondent engaged in a process of consultation with its specialized transit services customers and its accessibility advisory committee. While it appears that the applicant would prefer a shorter booking window, it also appears that the respondent’s 3-day booking window best meets the scheduling needs of the LTC’s paratransit customers overall, as well as enables the respondent to accomplish its goal of maximizing paratransit services to its customers. The respondent’s goal is to provide the greatest number of paratransit trips that it can to its specialized services customers, with the resources that it has available, and I find that the respondent’s 3-day booking window is reasonably necessary to accomplish that goal.
84I also find that to significantly expand the paratransit booking window, as the applicant seeks, would more than likely amount to undue hardship for the respondent in terms of increased administrative costs that would arise, and the likely disruption that would result from significantly expanding a booking window that was already reduced from 7 days to 3 days after consultation involving the respondent’s specialized services customers and accessibility advisory committee, ultimately resulting in fewer paratransit trips being provided in the face of an increased demand. In my view, the respondent’s 3-day booking window is reasonably necessary to its goal of maximizing services to its paratransit customers and the respondent has incorporated accommodation short of undue hardship within its booking procedure.
85In all of the circumstances, the Application is dismissed.
Dated at Toronto, this 21st day of November, 2013.
“Signed by”
Brian Eyolfson
Vice-chair