Wilford Shiell v. London Transit Commission and Voyageur Transportation Services, 2014 HRTO 481

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wilford Shiell

Applicant

-and-

London Transit Commission and Voyageur Transportation Services

Respondents

DECISION

Adjudicator: Kathleen Martin

Date: April 7, 2014

Citation: 2014 HRTO 481

Indexed as: Shiell v. London Transit Commission

APPEARANCES

Wilford Shiell, Applicant

Self-represented

London Transit Commission, Respondent

Lorraine J. Por, Counsel

Voyageur Transportation Services, Respondent

Dwayne Ferguson, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services on the basis of disability. The Application is about whether or not the respondents discriminated against the applicant in denying his request to bring a Segway on the specialized transit services of the respondent London Transit Commission (the LTC).

2The applicant has a chronic pain disorder that affects his mobility and qualifies him to use specialized transit which is the LTC’s door-to-door transit service for persons with disabilities. The applicant alleges that when he first contacted the LTC to access specialized transit he was told that he was not disabled. The applicant further alleges that although the LTC subsequently accepted that he was disabled, it refused to allow him to bring his mobility device, a Segway, on specialized transit because of a policy prohibiting Segways. The applicant alleges that the LTC and Voyageur Transportation Services (“Voyageur”) (the company which provides the specialized transit service under contract with the LTC) made only a “token effort” to address his request. As a remedy, the applicant asks that the respondents be directed to transport Segways and dialogue be established with the disabled community.

3The respondents LTC and Voyageur deny the allegations of discrimination.

4The LTC accepts that the applicant has a disability but submits that he has not been discriminated against by the policy, and even if he has, the policy is justified under section 11 of the Code and the caselaw. The LTC submits that it met its procedural duty to accommodate the applicant by conducting research on the Segway, by arranging with Voyageur to test whether it could be safely transported and by allowing the applicant an opportunity to present his case to the commissioners of the LTC. The LTC states that it could not accommodate the applicant by transporting his Segway without incurring undue hardship. The LTC submits that Voyageur was unable to safely tie down the Segway to permit it to be transported on its specialized transit vehicles.

5The respondent, Voyageur, echoes the submissions of the LTC. Voyageur submits that the Segway is not a mobility device and while it conducted a review, it did not meet safety standards for loading and unloading and in vehicle transportation.

The Proceeding

6Initially, the Application was filed against the named respondents and the City of London. By Interim Decision dated October 10, 2012, the City was removed as a party: 2012 HRTO 1925.

7The hearing was held in London, Ontario. On the third day of hearing, the applicant did not attend the hearing. The respondent LTC contacted the applicant by telephone and the applicant advised he had injured himself on the preceding day. On consent of the parties, the applicant was put on speakerphone. After reviewing the options, including that the applicant could request an adjournment, the applicant stated that he preferred that the hearing proceed with his participation by telephone. On consent of the parties, the third day of hearing proceeded with the applicant participating by telephone.

8At the hearing, I heard from the applicant and five witnesses for the respondents. Three of the witnesses work for the LTC: Kelly Paleczny, Christopher Murphy and Carolyn Roy. The two remaining witnesses work for Voyageur and testified about their efforts to consider whether the Segway could be safely transported on their specialized transit vehicles: Dwayne Ferguson and Brenda Newcombe.

9The parties made final submissions orally subject to filing written submissions on the provisions under the Highway Traffic Act and other regulatory framework relied on by the respondents in support of their justification for not allowing the Segway on transit. Only the respondent LTC filed additional submissions. Upon a review of the submissions filed, the Tribunal directed that the hearing be reconvened to hear further submissions on issues related to the regulatory material filed. The hearing was subsequently reconvened on August 15, 2013 and the parties made further submissions.

10I have based my Decision below on all of the evidence heard and the submissions made.

Summary of Evidence

11Most of the evidence was not in dispute and I accept the following summary of evidence unless I indicate otherwise below.

12In those few areas of dispute where I find it necessary to determine on a balance of probabilities, which version of events is more credible, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, of what is reasonable and probable in the circumstances. In addition, I have been mindful of the distinction between honesty and reliability of evidence: See R. v. Taylor, 2010 ONCH 396, 2010 ONCH 396, at paragraphs 58 to 60. In general, I found that all of the witnesses testified in what appeared to be an honest and sincere manner. However, there were occasions where I did not find a witness’ evidence to be reliable. I address the specific examples below where it is necessary to resolve any factual issues.

Background to the Policy Prohibiting Segways

13The background to the LTC’s policy concerning Segways was provided by Kelly Paleczny, then Director of Finance and Administration.

14On October 20, 2006, the Ministry of Transportation launched a pilot project to evaluate the use and operation of Segways on streets and walkways. The pilot project is set out in Regulation 488/06 under the Highway Traffic Act. Under the pilot project, Segways can be utilized by a police officer, letter carrier and a person who is 14 years old or older “if his or her mobility is limited by one or more disabilities, conditions or functional impairments” on roadways and sidewalks (the latter if not otherwise prohibited by municipal bylaw). In London, a bylaw permits the use of Segways on sidewalks.

15Originally, the pilot project was scheduled to be revoked on October 19, 2011. However, at the time of the hearing, it had been extended to October 19, 2013 (according to Ms. Paleczny because of limited participation).

16Given the pilot project, the LTC decided to look into the transportation of Segways on public transit because it anticipated that those using them would want to bring their Segways on the public transit system. The public transit system at the LTC consists of conventional and specialized transit services. The latter operates door to door, is equipped with a lift and needs to be pre-booked.

17Initially, Ms. Paleczny made a recommendation to the LTC to approve a policy prohibiting the use of Segways on conventional and specialized services. This recommendation was based on her view that there was inadequate information available to determine if the device could be safely accommodated on either conventional or specialized transit. On October 25, 2006, the commissioners approved the policy prohibiting the use of Segways on conventional and specialized services but also directed administration to proceed with the assessment of safety concerns associated with the transport of such vehicles and report back to the commissioners.

18Further investigation on Segways was done. Ms. Paleczny contacted other transit services in Ontario, conducted research online and did research of the experience in the U.S. With respect to other transit systems, no other services had encountered the situation which Ms. Paleczny attributed to the fact that London was one of the few municipalities that had a by-law permitting Segways on sidewalks. The research online revealed that Segways were never designed as a transportable disability device so there had been no consideration given to tie-downs which are required for transportable mobility devices. In the U.S., Segways were not authorized by the Federal Drug Administration and Ms. Paleczny was unable to find that any consideration had been given to the transportation of Segways. Ms. Paleczny found links to a few studies but none addressed using Segways on public transit. Based on her review, Ms. Paleczny concluded that there was no compelling evidence to assist the LTC in determining whether Segways had been allowed on board other vehicles or whether there were “add-on’s” that could provide adequate tie down points that would permit the Segway to be a transportable mobility aid.

19The policy continued in effect.

The Applicant’s Application for Transit and Allegations about the Application Process

20The applicant has a severe and chronic pain disorder which impacts on his mobility. As a result the applicant applied for access to transit as a person with a disability.

21The applicant uses a Segway as his mobility device. A Segway is a two wheeled battery operated device. The applicant’s Segway weighs about 82 to 84 pounds. The Segway is operated by a person standing on it and moving their body in the direction that s/he wants the Segway to go. The Segway can go at speeds from 12 to 20 kilometers an hour and the rider controls the speed through body movement. The Segway does not have brakes.

22The applicant uses the Segway whenever he does anything outside of his apartment including going to buy groceries, attending medical appointments and going for a walk for recreational purposes. The applicant’s need for transit arises whenever the weather is poor or if he has to travel a longer distance such as visiting a friend or going to the mall. In circumstances where his destination on transit requires walking once he arrives, the applicant needs to bring his Segway on transit to provide him with mobility at his destination. According to the applicant this was particularly the case in 2010 and 2011 because of the location of his apartment. Following the applicant’s move to a different apartment in January 2012, it would appear that the applicant’s need to bring his Segway on specialized transit lessened. At the time he testified in October 2012, the applicant could only recall two instances in 2012 where he was impacted by the policy.

23I heard two accounts of the applicant’s application for specialized transit.

24The applicant states that he applied twice for specialized transit. The applicant states that he first applied about a year before September 2008 and was rejected. Apart from recalling the approximate time of application, the applicant could not recall any details of the process. He states that he “think[s]” he had to return a form but he is not sure. He does not recall who he spoke to about it.

25The applicant applied a second time in September 2008. At the time of his second application, the applicant alleges that he had a telephone call with Christopher Murphy, the supervisor of specialized transit at LTC, and was told “flat out” that he was not disabled. The applicant states that he had to go for a functional assessment following which he was approved for specialized transit, but told that he could not take his Segway on transit.

26The applicant expressed that he took a lot of “abuse” in trying to resolve the issue of being able to access specialized transit although the only specifics he could recall was being directed to the “London Commission of Transit” (an entity that he states does not exist) and calling the City of London which he states got him “nowhere”.

27Christopher Murphy, the supervisor for specialized transit at the LTC gave evidence about the applicant’s application. Mr. Murphy states that the LTC has records of only one application being received from the applicant on September 11, 2008. A copy of the application was submitted into evidence. It reflects that the applicant applied identifying that he would be travelling with a powered scooter and cane. The attached medical form outlining treatment is not entirely legible but appears to reflect that the applicant is seeing, among other things, a pain specialist and that he needs a “wheelchair eg. in malls”.

28Mr. Murphy states that in connection with this application, he spoke with the applicant to verify the information on his application form and request that he come in to have a functional assessment by the occupational therapist. Mr. Murphy states that this is standard where one’s disability related needs are not obvious.

29During this conversation with the applicant, Mr. Murphy states that the applicant immediately questioned the application process and eligibility criteria and explained it would be a waste of time for him to attend because the decision was already made. Mr. Murphy states that he explained that the purpose of the assessment was to determine whether he was eligible for specialized transit and that the telephone interview was the first step in this process. Mr. Murphy states that during the conversation, the applicant became “quite passionate” about the Segway, noting that he had been “starved by the ODSP” (which I presume was a reference to the Ontario Disability Support Program) to get the Segway. Mr. Murphy denies that he told the applicant he was not disabled.

30Mr. Murphy states that the applicant cancelled the first date for the assessment. The applicant did request and attend another appointment on October 27, 2008 following which he was approved for specialized transit. The approval form identified that the applicant was currently using a “segway?”.

31With respect to the number of applications, I am not convinced that the applicant made two applications and that the first application was rejected. The applicant’s inability to recall who he spoke to and what transpired beyond being rejected is not sufficient evidence on which to make a finding that the application was made and rejected. This is particularly the case where the applicant does not have a documentary record of such an application nor does the LTC.

32With respect to the second application, to the extent there are differences in the respective accounts of the applicant and Mr. Murphy, I prefer and accept Mr. Murphy’s evidence. I note that the applicant did not dispute Mr. Murphy’s account of the second application other than Mr. Murphy’s denial that he told the applicant that he was not disabled. In general, I found Mr. Murphy’s account of his involvement measured and consistent with what seems reasonable and probable in the circumstances, as well as the documentary record of the application and other documentation prepared by Mr. Murphy around the time of the cancellation of the first appointment. Mr. Murphy explained that he would not tell any applicant that s/he was not disabled since it is not his place to do so given that the occupational therapist determines that issue. In any event, what is significant is that once the applicant was evaluated by the occupational therapist he was approved for specialized transit.

33With respect to the allegation of “abuse” even accepting the applicant’s evidence, that he was directed to an entity that did not exist and had a telephone call with the City of London that got him nowhere, I am not convinced that this is indicative of “abuse”, or in any event, any conduct that would be attributable to the named respondents and connected to the Code. While I accept the applicant genuinely felt upset by his experience, the sparse evidence given does not support an inference of discrimination based on disability in the application process attributable to the named respondents.

The Respondents’ Efforts to Accommodate the Applicant

The Site Visits

34After the applicant was approved for specialized transit and at his request, the LTC asked Voyageur to determine whether or not it could find a way to safely secure the Segway in their specialized transit vehicles.

35On November 9 and 11, 2009, Brenda Newcombe, the then supervisor of para- transit for Voyageur, made two site visits to the home of the applicant to explore the issue.

36Ms. Newcombe is trained on the lift used for loading into the specialized transit vehicles and the securement system for mobility devices once in the vehicle. The existing securement system used by Voyageur is Q-straint which was described as the leading manufacturer of securement systems. The system has retractable straps secured in the floor of the vehicle with bolts into the frame of the vehicle, which if pulled out and hooked to the mobility device, lock in place automatically.

37Ms. Newcombe states that there are two areas of concern from a safety perspective for any mobility devices being transported on specialized transit - the loading of the mobility device and the transport of the mobility device once in the vehicle. With respect to loading, a mobility device is loaded into the specialized transit vehicle by a lift that lowers out of the vehicle to the ground level. A person then loads with his/her mobility device on the lift and the lift is raised up to the floor level of the vehicle (described by Mr. Ferguson as a height of three feet). The mobility device has to be positioned on the lift so it does not touch the front and back plates (so as to not hamper them as they are moving pieces). According to Ms. Newcombe, the wheels must be stationary on the metal mesh floor of the lift. The manufacturer of the specialized transit vehicle recommends shutting off the equipment being loaded and braking the wheels of the mobility device. Once in the vehicle, the securement manufacturer, Q-straint, recommends a four point tie down of the device. Ms. Newcombe states that if there are no O-rings put on by the manufacturer, she looks for a welded location and keeps it at a 45 degree angle for securement.

38In the case of the Segway, Ms. Newcombe states that there were safety concerns with the loading and the securement once in the vehicle. In the loading, while the applicant shut off the Segway, it continued to move on the mesh floor because of the absence of a locking or braking device and the applicant could not steady himself by holding on to the handle provided on the lift for passengers because he had to hold on to the Segway to hold it in place. Once inside the van, the Segway could not be securely affixed in the location where mobility devices are transported which is in the open area of the vehicle where riders are also seated. The holes in the wheels of the Segway were not big enough to accommodate the existing Q-straint system. The only place to secure the Segway was around the centre column although at the base of the column the Q-straint straps were too short and had to be supplemented with an additional strap at each end. Ms. Newcombe states that there is not an option of getting longer straps from Q-straint as they have all of the sizes the company makes. Ms. Newcombe states that they affixed a separate second strap higher up the vertical column to attempt to secure the Segway and attached the strap to an existing attachment on the wall of the vehicle. However, this securement was not viewed as being a solution as the strap used is not mandated for securing mobility devices given that it can only secure items of less than five pounds and the attachments on the wall are only affixed by wood screws. Ms. Newcombe states that she could not achieve a four point tie down and the 45 degree angle for securement.

39Ms. Newcombe states that she could not secure it safely and that while just walking around the vehicle, the Segway was shifting.

40Based on the efforts made, Ms. Newcombe concluded that the Segway could not be safely transported. In the loading situation, Ms. Newcombe said that she could foresee it rolling because of the inability to lock the wheels, causing either the customer or the Segway to fall off the lift which could cause injury to either the customer or operator. In the vehicle, Ms. Newcombe states that because it could not be secured, she could foresee that if the bus stopped or had an accident, the Segway could roll or depending on the situation, become a large projectile or a tripping hazard. Ms. Newcombe states that this would have the potential to injure other customers on the bus who are persons with disabilities who are often not mobile themselves.

41Ms. Newcombe states that the applicant said that he had a user manual and he would look up the weight and see about ordering a plate for it to lock the wheels, but she never heard back from him. The applicant did not recall this dialogue and in fact said that he would not contact the manufacturer about anything pertaining to the Segway as the manufacturer is “not interested in medical uses” and is “not allowed to talk about it as a mobility device”. The applicant states that it was not developed as a mobility device and there would have needed to be “a billion dollars more testing and certification” for it to be used for other things.

42While the applicant did not recall the dialogue about the manual and plates, I accept that it occurred. I find it reasonable in the circumstances that Ms. Newcombe and the applicant would engage in a dialogue about the issues that were identified during the site visit.

43For the most part, the applicant’s other evidence was consistent with Ms. Newcombe’s evidence. The applicant did express the view that he thought the Segway was tied up “pretty good” and the tie down of the Segway was not “rocket science”, although the applicant did not offer any suggestions of how it could be secured. In her evidence, Ms. Newcombe disagreed with the applicant’s assessment, reiterating the need to have wheels that lock and sufficient places to tie down and secure whatever is being transported. Ms. Newcombe stated that they cannot even lock in suitcases on the specialized transit vehicles because they cannot put the hooks from the Q-straint system on them to secure them.

44I accept Ms. Newcombe’s evidence of the site visits including that the Segway could not be secured either in the loading or storage locations with the existing restraint system, and that as a result, Ms. Newcombe believed it could not be safely transported. Ms. Newcombe gave a detailed and chronological overview of the site visits and explained the basis for her opinions. I address the legitimacy of these opinions below.

45While taken at its best, the applicant’s evidence consisted of a different opinion and I did not find his evidence convincing. The applicant provided only a brief description of the site visits and while stating that he thought the Segway was tied up “pretty good” and that to secure it was not “rocket science”, he did not the outline the factual basis for his view. Moreover, he did not cross-examine any of Ms. Newcombe’s account including her evidence that the Segway was unable to be stabilized on the lift, and once affixed with the restraint system it continued shifting even after an effort was made to secure it. In light of this, while I accept that the applicant sincerely believes what he expressed, I have difficulty accepting this evidence over the more detailed chronological account provided by Ms. Newcombe.

46Following Ms. Newcombe’s site visits, Mr. Ferguson, the general manager for Voyageur, was alerted to Ms. Newcombe’s view that it could not be safely secured and stated that he gave a “nod of agreement”.

47With respect to the ability to retrofit their vehicles (so as to permit some other kind of securement), Mr. Ferguson expressed that Voyageur cannot attach anything to the interior of their vehicles and that only the manufacturer can or they would need to have an authorized certified company to do it. Mr. Ferguson stated that this was based on his general knowledge but then also stated that Voyageur is bound to comply with the Canadian Standards Association Standard D409-02 (the “Standard”) by Regulation 629 R.R.O. 1990 regarding Accessible Vehicles under the Highway Traffic Act and there were standards that would have a bearing on what they could do. Mr. Ferguson identified a number of sections that he viewed as having application and undertook to file a copy of the same. While a copy of the standards was ultimately produced, they were not explored further in the evidence and the applicant elected to not cross-examine Mr. Ferguson. I address the significance of the standards in my analysis and decision below.

48Voyageur communicated to LTC that it could not find a way to safely tie down the Segway and LTC accepted the opinion. Ms. Paleczny stated that she did not “push forward and ask for other things to be tried” as LTC relies on Voyageur’s opinion. Ms. Paleczny explained that LTC cannot dictate that Voyageur transport mobility devices if Voyageur thinks they are unsafe. Ms. Paleczny did do further research on the issue following up with other transit services again and the Ministry of Transportation that had initiated the pilot project to see if any additional information was available on how to secure the Segway. No additional information was received.

49Ms. Paleczny stated that if retrofits had to be done, it would have to be to the entire fleet of vehicles and the contract with Voyageur would have to change with the result that there would be higher costs. Ms. Paleczny stated that funding is “extremely limited” for accessible transit as they are competing with other services such as police and fire.

The Applicant’s Attendance at the Meeting of the Commissioners

50On January 27, 2010, the applicant appeared in front of the commissioners of the LTC to request that the policy regarding Segways be amended to allow them on transit services. The commissioners are comprised of two elected officials and three members of the public. The meeting was also attended by Mr. Ferguson, the general manager of Voyageur and Ms. Paleczny and notes of the meeting were taken by Carolyn Roy, who submitted them in the hearing.

51During the meeting, the applicant explained his need for the Segway and why a traditional scooter is not appropriate for him as it aggravates his condition. The applicant gave a demonstration of the Segway and expressed the view that there should not be a problem in finding a way to tie it down. Ms. Paleczny indicated otherwise explaining that there were no built in fasteners to allow it to be secured and that no other transit systems allow them. Voyageur’s efforts to secure it in the site visits were reviewed. Various questions were posed by the commissioners and answered by those present including the applicant. One commissioner asked about whether or not anyone had contacted the manufacturer to obtain fastening devices and the applicant responded that the manufacturer does not recognize it as a “specialized service”.

52At the meeting, the LTC approved maintaining their current policy prohibiting the conveyance of Segways on conventional and specialized services.

53The applicant gave evidence about a remark made to him by a commissioner as he was leaving the meeting (that he should “stick to your own kind”) which the applicant interpreted to mean that he should have known better than to attempt to have a fair hearing. The applicant had not particularized this remark in his Application and made no reference to the remark in his final submissions. In the circumstances, it would appear that the applicant is not alleging that this remark was discriminatory because of a ground under the Code. In any event even if I am mistaken about this, I would not find that the evidence of the remark, assuming it was made, is sufficient to draw any inference that the remark was discriminatory.

Other Evidence

54The respondents presented evidence from several witnesses about other mobility devices or aids which were not able to be transported because of safety reasons. For example, LTC has a three wheel scooter policy that prohibits the transportation of a customer while on board a scooter because it is unstable (instead the customer has to transfer to a seat from their scooter). The LTC also has a policy prohibiting loaded bundle buggies from being used on specialized transit. The corresponding background paper references the lack of tie down points and locking wheels as being the rationale for the policy. Further, there was evidence that certain wheelchairs that do not meet the specifications to enable a four point tie down or that do not have working brakes are not transported.

Analysis and Decision

The Legal Framework

55Sections 1 and 11 of the Code read as follows:

1. 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.

2. (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.

56The onus is on the applicant to establish, on a balance of probabilities, that he has a disability and that the respondents discriminated against him based on his disability. Where the applicant establishes that he has been subjected to discrimination, the onus shifts to the respondents to establish on a balance of probabilities that the policy prohibiting Segways is reasonable and bona fide in the circumstances including that the respondents have met their procedural and substantive obligations to accommodate the applicant to the point of undue hardship

57In this case, the parties agree and I accept that the applicant has a severe and chronic pain disability impacting on his mobility which qualifies as a disability within the meaning of the Code. Thus, the issues in dispute are whether the applicant has established a prima facie case of discrimination; and if the applicant has, whether the policy is justified under s. 11 of the Code and the caselaw.

58In my decision below, I focus on the applicant’s attempt to access specialized transit (or para-transit). I make no finding in respect of conventional transit, as I did not hear evidence about the conventional transit other than that the policy extends to that form of transit.

Is the policy prohibiting Segways prima facie discriminatory against the applicant?

59The respondent LTC concedes that the applicant is disadvantaged by the policy given that he is dependent on the Segway and is precluded from using para transit if his destination requires any walking which is beyond his physical capability. However, the respondent argues that the applicant has not established a prima facie case of discrimination. LTC submits that the applicant has been able to access specialized transit on some occasions (presumably when he did not need to bring his Segway to his destination). Further, LTC argues that the applicant has not established a substantive distinction or differential treatment because he was treated the same as everyone else. LTC argues that any rider can only transport mobility aids which meet the appropriate safety standards and there is no link between the applicant’s disability and the adverse treatment because every person is prohibited from using a Segway, whether with or without a disability.

60The respondent Voyageur made no submissions on the issue of whether or not the applicant had made out a prima facie case of discrimination.

61I do not agree with the respondent LTC’s analysis of discrimination. Applying s. 11 of the Code to the circumstances, the issue is: did the policy prohibiting Segways on specialized transit result in the exclusion, restriction (or otherwise have an adverse impact) on the applicant because of his disability. The focus is not on all transit users or even transit users who have a different disability-related need but instead on the applicant and his disability-related needs.

62In this case, the applicant did not provide medical evidence in support of his need for the Segway as his mobility device. While there was a medical note on the application for specialized transit stating that the applicant needs a wheelchair, the respondents did not raise any issues about this documentation in the evidence and did not take the position that the use of the Segway was a preference on the applicant’s part such that other mobility assistive devices could meet his needs. Further, it is apparent from other evidence such as the applicant’s attendance before the Commissioners that the applicant uses a Segway because a traditional scooter aggravated his condition. Based on all of the evidence and the parties’ submissions, I therefore accept for purposes of this case that the applicant has a disability-related need for the Segway.

63With respect to disadvantage, I also accept that at the time the Application was filed and through at least 2011, the applicant was disadvantaged by the policy prohibiting Segways. The applicant’s dependence on the Segway as his mobility device precluded him from using the specialized transit service if his destination required any walking which is beyond his physical capability. In this respect, the applicant provided evidence of having difficulty getting to medical appointments, not being able to attend memorial services and being isolated from social and community events because he was unable to attend due to the policy prohibiting Segways. This is clearly a disadvantage which is linked directly to his disability and his corresponding need for the Segway as a mobility device. I therefore find that the applicant has established a prima facie case of discrimination.

Is the Policy Justified Under s. 11 of the Code?

64I turn to consider whether the requirement – the policy prohibiting Segways – is reasonable and bona fide, within the meaning of section 11. In this, I am guided by the approach set out in the Supreme Court of Canada decisions in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Services Employees’ Union, [1999] S.C.R. 3 (“Meiorin”) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 (“Grismer”). Adopting the approach taken by the Supreme Court, which has been applied by the Tribunal, I find that in order to establish a justification under this section, the respondent LTC (and where applicable, the respondent Voyageur) must show:

• that it adopted the policy banning Segways for a purpose or goal that was rationally connected to its provision of this service;

• that the policy was adopted in an honest and good faith belief that it was necessary to the fulfillment of that purpose or goal; and

• that the policy is reasonably necessary to accomplish this purpose or goal, in the sense that the respondent cannot accommodate persons with the characteristics of the applicant without incurring undue hardship.

65In its submissions, the respondent LTC argued that all three elements of Meiorin/Grismer were met. The respondent argues that the general purpose of the policy is safety and that this goal is rationally connected to the function performed by the LTC of transportation of people with disabilities. LTC also submits that the particular safety standard was adopted in good faith and in the belief that the policy was necessary for the fulfillment of their goal of safety citing the evidence based on the investigation of other service providers, its research and on the advice of Voyageur that the transportation of the Segway poses a safety risk for passengers, the operators, the public at large and the applicant himself. Finally, the LTC argues that it met its duty to accommodate both procedurally (through its research, site visits and provision of an opportunity to the applicant to present his case to the commissioners) and substantively relying on the evidence including that the Segway has no brakes, is not a developed mobility aid and cannot be safely secured in loading or once on the vehicle because of a lack of brakes and tie down points.

66In support of its submissions, the respondent LTC initially referenced several regulations which it suggested had application although ultimately, it appeared that the regulation which was most germane was Regulation 629 under the Highway Traffic Act (Accessible Vehicles). This Regulation mandates that the standards set out in Canadian Standards Association Standard D409-92 are prescribed and required for use in all accessible vehicles which would include the specialized transit vehicles used by Voyageur. The CSA standards in effect at the time of the hearing were D409-02. The standards apply to the transportation of mobility aids and mobility devices which are defined terms. Mobility aids (which are devices used to facilitate the transport in a seated posture of a person such as manual and powered wheelchairs and scooters) require a four point tie down and are subject to a number of other requirements. Mobility assistive devices include a cane, walker or similar aid, and have recommended guidelines including that they be “suitably stored or secured in either a closed compartment or secured to the vehicle so they can withstand a pulling force of five times the mass of the item”.

67In the reconvened hearing, the LTC clarified that the Segway was likely included in the definition of a mobility assistive device. The LTC further submitted that the regulatory framework neither “helped” nor “hurt” its submission on safety and that the overriding requirement is to make sure the mobility device can be securely fastened so that it can be transported safely on the specialized accessible vehicles.

68The respondent Voyageur made only very brief submissions indicating that it could only transport mobility devices consistent with the rules and regulations including the Highway Traffic Act and that there are no points on which to secure the Segway so as to make it safe for transit. Voyageur did not elaborate specifically on what rules and regulations may be relevant beyond supporting the LTC’s submissions. Voyageur submits that it risks losing its licence were it to provide transport to the Segway.

69While initially the applicant appeared to question the sincerity of the respondents’ goal of safety in his opening statement, he did not pursue this claim in his final submissions. Instead, the applicant focussed on the issue of accommodation. The applicant submitted that the LTC never intended to change its policy and he was not accommodated in an “authentic” way. When I asked the applicant to explain what he based this on he stated that the respondents did not have a way to “make anything” which I understood was referencing a mechanism to secure the Segway in the vehicle.

70Based on the evidence and the parties’ submissions, I am satisfied that the first two elements of Meiorin/Grismer have been met.

71In my view, it is clear that the origin of the policy restricting Segways was based on safety and this goal is rationally connected to the transportation of persons with disabilities. Second, I heard no evidence that would cause me to doubt that the policy prohibiting Segways was adopted for anything but an honest and good faith belief that it was necessary to accomplish its goal of safety on its vehicles.

72In this case, it is clear that the central issue in dispute is the third stage of the Meiorin/Grismer test – whether the respondents demonstrated that the policy was reasonably necessary for LTC to accomplish its purpose, i.e. that LTC (and Voyageur) could not accommodate the applicant without undue hardship. Based on the particular evidence in this case, I am satisfied that the respondent has established, on a balance of probabilities, that the policy is reasonably necessary.

73It is well established that the duty to accommodate has both procedural and substantive obligations. To meet the procedural aspect of the duty to accommodate, a respondent must take adequate steps to explore what accommodation is needed and assess accommodation options. The substantive component of the analysis considers whether the accommodation offered was reasonable or whether a respondent was justified in not providing accommodation.

74Further, the analysis of what is reasonable in a given case is contextual: [w]hat constitutes reasonable measures is a question of fact and will vary with the circumstances of the case” (see Central Okanagan School District No. 23 v. Renaud, [1992] S.C.R. 970 at para. 19).

75In Pantoliano v. Metropolitan Condominium Corporation No. 570, 2011 HRTO 738, the Tribunal considered how risks should be measured when assessing whether accommodation will cause undue hardship. At paragraph 100, the Tribunal adopted the following methodology for measuring risk set out in the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate:

In its Policy and Guidelines on Disability and the Duty to Accommodate the Ontario Human Rights Commission discusses a methodology for measuring risk:

In determining the serious or significance of a risk, the following factors should be considered:

• the nature of the risk

o what could happen that would be harmful?

• the severity of the risk

o how serious would the harm be if it occurred?

• the probability of the risk

o how likely is it that the potential harm will actually occur?

• is it a real risk, or merely hypothetical or speculative?

o could it occur frequently?

• the scope of the risk

o who will be affected by the event if it occurs?

The seriousness of the risk is to be determined after accommodation and on the assumption that suitable precautions have been taken to reduce the risk.

76While this Policy is not binding on the Tribunal, it does provide some guidance of how to evaluate the purported risk being put forward to justify a discriminatory policy.

77In this case, it is undisputed that the Segway was not designed as a mobility device or aid. It has no tie-down locations put on during its manufacture, has no braking system and is heavy (the applicant’s evidence is that his device weighs 82-84 pounds). In this respect, the Segway does not have the same attributes of recognized mobility aids which have been developed to ensure that they can be transported safely. I accept that the attributes (or deficiencies) present significant challenges for transportation in a specialized transit vehicle, particularly given that mobility devices are stored in the open cab adjacent to the riders who are persons who have mobility issues.

78I am satisfied that the respondents met their procedural obligation to accommodate the applicant. The respondent LTC conducted research on the use and experience with Segways of other transit systems in Ontario and in the U.S. in order to obtain information related to if and how Segways could be safely transported. In addition, the LTC arranged to have the applicant’s specific Segway tested by its contractor Voyageur on a specialized transit vehicle that would be used to transport it were it to be approved. In attempting to accommodate the Segway, Voyageur utilized the existing restraint system and then modified it with other tethers it had available.

79When Voyageur determined that it could not safely secure the Segway with the existing restraint system, the LTC updated its research and contacted the Ministry to determine if further information was available. Further, at the request of the applicant LTC provided him with an opportunity to appear in front of the commissioners to speak to the issue. Based on the parties’ evidence of what transpired at that meeting, I find there was a sincere effort being made to consider the applicant’s situation. For example, one of the commissioners asked the obvious question of whether or not anyone had contacted the manufacturer to obtain fastening devices. Notably when this question was posed, the applicant did not suggest this would be fruitful. As the applicant expressed then and at other points in his testimony, this would not be helpful as the Segway was never developed as a mobility aid.

80Based on the evidence, I am satisfied that the respondents and in particular the LTC made a number of efforts to explore accommodating the applicant and actively pursued various avenues. In the circumstances, I am satisfied that the respondents discharged their procedural obligation to accommodate the applicant.

81I am also satisfied that based on the evidence in this case, the respondents have met their substantive obligation to accommodate the applicant. The main contention of the respondents is that it would be undue hardship to accommodate the applicant because they are unable to safely transport the Segway because of the lack of brakes in loading and the inability to secure the device using the existing restraint system with modifications. In making this submission, the respondents rely primarily on the results of the site visits from Ms. Newcombe, evidence which was largely unchallenged and which I accept.

82Given its weight and the location of storage being in the cab area of the vehicle adjacent to other riders who have mobility issues, I accept that the Segway needs to be securely fastened. While various witnesses referenced the Highway Traffic Act and the CSA standards, I am not convinced that I can glean much assistance from the current regulatory framework. It would appear that the Segway does not fall within the definition of mobility aid although it would appear to be captured in the definition of mobility assistive device. Given the types of devices that fall within each category, what seems clear is that the standards were likely developed without the Segway being contemplated as a mobility aid or device given the types of examples that are offered in each category and the fact that the Segway weighing in the 80 pound range is undoubtedly heavier than the other examples of mobility assistive devices such as a cane or a walker and thus may require other securement. In the circumstances, regardless of the application of the CSA standards, I agree with the LTC that the Segway would need to be securely affixed.

83With respect to the issue of risk, I accept the evidence of Ms. Newcombe that the Segway poses a risk if it cannot be secured on the loading platform and on board for transport. I accept that the Segway could fall off the loading platform if not properly secured with brakes (with the potential to injure the applicant or operator) and/or become a projectile or a tripping hazard in the case of a stop, turn or accident if not properly secured on board. These are real and legitimate risks which depending on the circumstances vary in severity.

84While there was no evidence that there had ever been an accident on specialized transit involving a Segway, I do not find that the absence of such evidence means that such a risk is speculative given that there is no evidence that the Segway has ever been transported in this type of vehicle. Notably there was some evidence that the LTC has experienced an accident involving a three wheel scooter with a rider on board when it tipped over while the transit vehicle was making a routine turn. This accident ultimately led to the policy regarding three wheel scooters and the need that riders disembark during onboard transportation so that the scooters could be secured.

85Based on the evidence, I accept that Voyageur was unable to secure the Segway. Voyageur was unable to secure the Segway in either the loading stage (principally because of the absence of brakes or a locking mechanism on the wheels) and on board (because of the absence of brakes and the inability to secure using the existing restraint system as modified). The Segway continued to move when it was being loaded on a moving platform and once tethered on board by walking around the vehicle. While the applicant expressed a contrary opinion in his evidence, he did not challenge that the Segway was unable to be stabilized and was shifting on the loading ramp and once tied down. I do not find that the applicant’s expression of an opinion undermines the respondents’ detailed evidence of its testing of the Segway in any meaningful way particularly when the applicant elected not to challenge the evidence through cross-examination.

86Further, I also attach some significance to the fact that there was no evidence presented by the applicant of any alternative options of securing the Segway. While there may be legitimate reasons for this given that the applicant is unaware of an alternative, it nonetheless leaves the Tribunal with the unchallenged evidence that the Segway was unable to be safely secured with the existing securement system.

87In reaching my conclusion, I have considered the fact that the respondents’ efforts were limited to assessing whether the Segway could be secured using the existing restraint system with modifications and investigating whether there was additional research to inform their actions from other transit systems and elsewhere. In providing a justification for this, the respondent LTC argued that the procedural duty does not extend to retrofitting vehicles. While I am not convinced of this submission as a general proposition, in the context of this case and based on the evidence before me, I do not find a breach of the Code on this basis.

88The ability to use a Segway on a sidewalk is part of a pilot project with an expiry date (at the time of the hearing October 19, 2013). While the evidence was not detailed, I am satisfied that efforts to retrofit the vehicles would require consultation with a mobility expert to explore either construction of a separate compartment to house the Segway during transit and/or a different tethering option. As the LTC witness stated, retrofitting would have to be done to all of the specialized transit vehicles. This context has to be balanced as against the fact that the Segway was not developed as a mobility device or aid. In the context of a request involving a device that was never developed as a mobility device and which has clear safety challenges because of its design, I am not convinced that the LTC was required to consider retrofitting in these circumstances.

89This conclusion is further supported, on the evidence before me, by the safety issues involving the Segway which stem in part from the lack of a braking or locking system which goes to the design and manufacture of the Segway itself. Based on the evidence, I cannot conclude that the applicant made efforts to assist the process by obtaining a device to lock or brake for the wheels. While there may be legitimate reasons for this given that there was evidence that the lock available was not for securement, the fact remains that it is a problem of the Segway design over which the respondents have no control and the applicant has not taken any measures to attempt to resolve the issues by altering the device so that it could be secured safely. As concluded above, the design of the Segway raises safety concerns in the loading/unloading phase in addition to the transport phase. For all these reasons, I find that the respondent has established that it would be undue hardship to accommodate the applicant.

90The Application is dismissed.